Scott v. Sanford

Headnote

I. Contract.

Rights of parties under a contract where one is to build a certain wall at the joint expense of both, and certain other things are to be done at the expense of the other.

1. Contributions for expense of wall, when cannot be

CALLED FOR.

1. When the party who was not required so to do, built a wall, but not the one called for by the contract, he cannot call on the other for contributions.

3. Expense of other things.

1. The fact that he has built a wall, for the expense of which he cannot call for contributions, does not relieve him from Ms obligation to pay for the other things, which were to be done at his expense.

IL Trial, conduct or.

1. Evidence. Non-production of paper called for.

1. The fact that a party declines to comply with a notice to produce, does not make the subsequent admission of a paper offered by such party, substantially differing in its terms from the one called for, although bearing on the same subject-matter, error calling for a reversal.

The controversy arose out of the following contract (being Exhibit A).

“Whereas, George S.- Scott, of 36 Broad street, New York, in improving and grading his lot in rear of lot No. 29 West 56th street, New York city, occupied by Daniel Sanford, removed the earth on his lot, supporting and keeping in place that upon said Sanford’s lot, in consequence of which the rear of said Sanford’s lot has caved or slided off, and by reason of the difference in the grade of said lots it becomes necessary that some erection be made to support and keep in place the rear of said Sanford’s lot.

“It is hereby agreed that the said Sanford construct a wall wholly upon his own land and immediately adjoining the rear of said Scott’s lot, as high as the surface grade of said lot No. 29, and sufficiently strong to support the rear of said lot, at an expense not exceeding one hundred and eighty dollars, the expense of which shall be equally divided between said Scott and Sánford.

“The cesspool and flagging, and fence upon said Sanford’s lot, injured or destroyed by the said Scott in. improving his said lot, to be restored and made good at the sole expense of and by said Scott.

“In witness whereof, the said parties have hereunto set their hands and seals this 25th day of November, 1872. “ Geo. S. Scott, [seal.]

“Daniel Sanford, [/seal.]”'

From the evidence it appears that Scott constructed the wall on his own land.

There was conflicting evidence as to the expense of restoring the cess-pool, &c., on'Sanford’s lot.

In the course of the trial, defendant having been called on (pursuant to notice) to produce a contract whereby, plaintiff was to employ a mason to build a wall between his lot, and defendant’s lot adjoining thereto on the rear, declined to produce it. Subsequently defendant offered to read in evidence, the paper previously marked “Deft’s Ex. A. for identification” as the written agreement between the parties.

Plaintiff objected to its-introduction, on the ground that defendant, having refused to produce the written agreement when plaintiff called for it-on the trial, in accordance with plaintiff’s previous written notice to produce it, and having allowed plaintiff to give secondary evidence of the contents of that agreement, and having cross-examined plaintiff respecting its contents, cannot offer it in evidence now.

The objection was overruled. An exception, was taken. The written agreement was admitted, and to its admission plaintiff objected and excepted.

The court charged the jury: “ This paper (Exhibit A.) undoubtedly constitutes the contract between the parties upon which their rights and liabilities depend. Under this agreement it was not the duty of the plaintiff to build the wall, but the duty of the defendant. ¡(The plaintiff having built another wall, and one, as the evidence stands, entirely on his own ground, which ¡the contract does not call for, and which the law does mot imply a request that it should be done, he cannot recover anything for the building of the wall.)” (To •which portion of the charge included in brackets plaintiff’s counsel excepts.)

“ On the other hand, the contract provides that the plaintiff shall standthe expense of repairing the cess

pool, flagging and fence to the same condition in which they were before they were injured, and the defendant is entitled to recover whatever he may have reasonably expended in that regard.

“Now there is a difference between the testimony of Mr. Rogers and the testimony of Mr. Hogencamp, as to what was a reasonable amount to be expended for that purpose, and that question 1 submit to you.”

Plaintiff’s counsel requested the court to rule that if by reason of the contract not having been complied with, no liability was imposed upon the defendant, the plaintiff is equally released from liability.

The request was declined and an exception taken.

The jury brought in a verdict for the defendant against the plaintiff, assessing the damages at the sum of ten cents.

Plaintiff’s counsel moved for a new trial on behalf of plaintiff, on all the grounds in section 999 of the Code.

Motion denied; exception taken.

From the order denying the motion and the judgment entered upon the verdict, plaintiff appealed.