Brown v. Pentz

¶1(dissenting.) — By the terms of the contract under which Sanford erected the wall in question, he was to be paid for it by Roulet when he should build upon the adjoining lot, or the wall should be used by him, his heirs, executors, administrators or assigns. There is neither allegation nor proof *232that Iselin or the defendants are the heirs or assigns of Roulet, or that the defendants hold in any manner in subordination to his title; for aught that appears the title of Iselin was adverse to that of Roulet. Nevertheless, he had the right (which the defendants cannot question), to provide for the payment to Sandford for the party wall built by him, in the event of its being used by them; but when such provision is made by a party under no obligation to make it, it should be so free from ambiguity as not to be susceptible of any reasonable construction of being considered a provision for the benefit of the party making it. The question then arises whether Iselin intended to obligate the defendants to pay the builder of the wall its value in the event of its being used by them. The provision is that one half of the party wall is tobe paid for “whenever they should build upon the lot or use the wall.” The mere fact that the clause referred to stated that the wall in question was erected by Dickey, is not, unaided b}r any extrinsic circumstances, sufficient evidence that the builder of the Avail, whoever he Avas, had not been paid; it is by no means unreasonable to suppose that the statement that the wall was erected by Dickey was intended merely as descriptive of the wall to be paid for, and having no regard whatever to the person to be paid. So far then alone as the deed above furnishes evidence, the obligation to pay must be regarded as having been made ■for the benefit of Iselin, the owner, who conveyed to the defendants the land upon which the wall stood, and unless the extrinsic circumstances point to some other person than him as the one to whom payment was to be made, the plaintiff should not have recovered. It is not enough to show that a third party built the wall, and it Avas to be paid for when it was used ; but it should at least have been shown that Iselin knew that the builder was unpaid. It is idle to suppose that he intended to provide for the payment of a demand of which he was wholly ignorant. If it had been shown that Iselin held under Dickey, who derived his title from Sandford, and knewt that the builder of .the wall was unpaid for his services and'' materials, and was to be paid when the wall Avas used, then perhaps it might be inferred that it was for the benefit of the builder that the provision was made. There is, however, no *233evidence in the case to show that Iselin ever knew Sandford, or heard that he was the builder of the wall in question. On the contrary, the provision in the deed relied upon by the plaintiff, upon its face states that Iselin at the time of making it supposed the wall was erected by Dickey, to whom Sandford, in 1815, conveyed the lot upon which hit, part of the wall stood. This repels the idea that Iselin was cognizant of the arrangement between Roulet and Sandford, and had reference to it. There is no evidence that Iselin knew that one half of the expense of the wall was not borne at the time it was built by the owners off the respective lots on which it stood, hence none pointing to any other than Iselin as the one to whom the wall was to be paid for. There is no pretense that the plaintiff is entitled to recover unless the provision in the deed to the defendants was intended for the benefit of the unpaid builder of the wall. The evidence is insufficient to justify such an inference, and the judgment should, therefore, be reversed.