48 Neb. 767 | Neb. | 1896
Sweesy brought an action against Stuht, alleging in his original petition that Stuht was, in 1888, the owner of the north one-third of lot 5, in block 169, in the city of Omaha, and that Pauline Chapman was the owner of the south two-thirds of that lot; that there was executed and delivered by said persons a written agreement whereby a party Wall was to be maintained on the division line between their said lots. A copy of this contract was attached to the petition. It is unnecessary here to set out its terms beyond the facts that it provided that the party first having occasion to build should construct the wall, which should be of strength sufficient to support a building three stories or more in height; and that the other party should contribute one-half the cost of the same, payable, as the work progressed, on estimates made by the architect or superintendent of the building. The petition further alleged that in March, 1890, Sweesy became the owner of the Chapman lot, and that in the year 1890 he constructed a building thereon embracing a party wall in accordance with the contract. He prayed judgment for one-half the cost of said wall up to and including the third story, to-wit, $969.68. A general demurrer to this petition was sustained, obviously on the ground that the contract did not run with the land, and that Sweesy could, therefore, not avail himself of its benefits. Thereupon Sweesy filed an amended petition containing all the averments of the original, but alleging, in addition thereto, that when plaintiff was about to erect his building he and the defendant agreed that the party wall should be constructed on the division line between their respective lots, and that after the completion of the building the defendant, in consideration of the construction and completion of said wall, promised and un
The defendant contends that the court erred in overruling the motion to require the plaintiff to separately state his causes of action, and to strike out of the petition that portion relating to the contract between Stuht and Pauline Chapman. The theory of this motion was that the plaintiff in a single count declared upon the Chapman contract and also upon a subsequent parol contract; that the sustaining of the demurrer to the original petition took out of the case all consideration of the Chapman contract. We construe the amended petition, however, as declaring only upon the subsequent parol contract between the parties to this action, and as pleading the Chapman contract as matter of inducement. It is very probable that the district court should, on a proper motion, have stricken out some of the averments. But the motion did not specify any particular portions which should be stricken out, but left the court to surmise or determine what portions the pleader meant as referring to the Chapman contract. For this reason, if for no other, there was no error in overruling the motion. A motion to strike should designate with particularity
The next question presented is whether the parol contract was valid. The evidence tends to show that Sweesy caused plans to be drawn for the building which he was about to construct, which plans contemplated a wall entirely upon his own land, he being then ignorant of the existence of the Chapman contract. Mr. Stuht, in company with the plaintiff, visited the architect’s office and examined these plans, whereupon Stuht suggested that, as he contemplated building on his lot the following year, the plaintiff should construct his north wall half upon each lot, making thereof a party wall, and that he should construct it with arches at the ends of the. hallways and with the elevator near the north end of the building, instead of at the south where it had been planned, so that when Stuht should build the two buildings might be connected and one elevator used for both. There is also evidence tending to show that the plaintiff, at Sweesy’s request, increased the capacity of the heating apparatus in order that it might be available for Stuht’s building when constructed. The plans were changed accordingly and the party wall constructed, Stuht from time to time seeing the work and knowing that it was being done according to his suggestion. After its completion Mr. Sweesy procured his attorney to draw a party wall contract. This was done, but Stuht refused to sign it, saying that there was already in existence a contract with Pauline Chapman and that he would pay for the wall in accordance with the terms of the Chapman contract, which facts rendered the pleading of that contract proper by way of inducement and rendered evidence thereof relevant. Sweesy threupon caused the architects to make an estimate of the cost of one-half - of the wall up to and inelud-
It is next contended that the promise was within the statute of frauds and void because not in writing. Whether a promise in su ch a case is within the statute of frauds Ave need not inquire. See, however, Stephens v. Harding, 48 Neb., 659, on this, point. If it were, it would be in this case taken out by part performance. The plaintiff had changed the plans of his building and had built his north Avail partly on defendant’s lot, it is true not relying on the specific promise made subsequent thereto, but undoubtedly in reliance upon the previous request or agreement. The philosophy of the cases referred to on the preceding question must be that where there has been a request on one side, a performance in pursuance thereof on the other, and a subsequent promise to pay therefor, the three acts link together and constitute a single transaction, the contract relating back to the original request. So that the performance by SAveesy, while it preceded the specific promise, folloAved and Avas induced by the request, and the whole matter
Some of tbe assignments of error relate to tbe admission of evidence as to tbe conduct of tbe parties prior to tbe promise. Tbe views of tbe court as already expressed, we think, show tbe relevancy of that evidence so as to render a particular discussion bere unnecessary. Another assignment is that tbe court erred in permitting Mr. Kennedy, plaintiff's attorney, to give evidence of an offer made by Stubt in tbe way of compromise. This testimony related to a conversation between Kennedy and Stubt at tbe time Sweesy endeavored to procure tbe written agreement. It was a part of tbe negotiations which led to tbe promise sued upon. It was not an offer to compromise tbe now existing cause of action, but merely went in, in connection witb other conversation, as a part of tbe transactions leading to tbe consummation of tbe contract sued on.
We think we have covered tbe questions raised by all tbe assignments of error, although they have not been noticed in detail. Tbe rulings of tbe court upon tbe evidence, and tbe instructions, were in precise accordance witb tbe views we have announced.
Judgment affirmed.