Poultney v. Depkin

1 Balt. C. Rep. 458

• Court: Baltimore City Circuit Court
• Decided: June 26, 1894
• Status: Published

Opinion

DENNIS, J.

I am at a loss to see in what respect the defendant has violated the contract entered into between him and the plaintiff. The latter agreed that in consideration of the sum of $400, the defendant might* have the right to use the wall of the plaintiff’s warehouse as a party wall in the erection of the defendant’s proposed new building, provided the wall should be determined to .be sufficiently strong for the purpose. This was the only condition imposed, 'and the agreement further provided that the defendant should pay the plaintiff any damages the latter might suffer from building the said wall.

Under this agreement the defendant had a right, upon payment, or tender of the sum agreed upon, to use the wall for the purposes to which a party-wall can be subjected; i. e., to build upon it, or to insert his joists in it, or even to tear it down and build a new wall, provided the plaintiff’s rights were properly protected, or he was paid all damages to which he might be thereby subjected. (Putzell vs. Bank.) The only restriction upon the exercise of this right was the condition that it should first be determined that the plaintiff’s wall was strong enough to support the proposed structure. The testimony shows that, according to all the builders who were examined, that the wall was sufficiently strong for the use proposed to be made of it, and there has not been a word of proof offered that the plaintiff will suffer any damage by the erection of the defendant’s building. The defendant having tendered the plaintiff the amount agreed upon the latter is not entitled to an injunction to restrain the use by the defendant of the wall for all the purposes of a party wall; but if he can prove that he has suffered any damage, he is entitled to recover therefor, both upon the general principle announced in the case of Putzel vs. Bank, and under his special agreement with the defendant contained in the written contract between them.