Lagomarsino v. Crowe , 134 Ala. 377 ( 1901 )

McCLELLAN, C. J.

Horare Ware, owning two adjoining lots in Sheffield numbered 13 and 14, respectively, in block 71, sold one of them, that numbered 13, which lay north of lot 14, to Davega Bros. In connection with the sale and as a part indeed of the transaction Davega Bros, entered into an agreement in the following language: “This agreement witnesseth that, whereas, Horace Ware, of the county of Jefferson and State of Alabama, has this day sold to Davega Bros., a firm composed of Isaac Davega, Jr., and Solomon B. Davega, of the City and State of New York, a certain lot of land in the City of Sheffield, County of Colbert and State of Alabama, known and designated as lot numbered (13) thirteen in block numbered (71) seventy-one, now, therefore, for and ini consideration of the above sale, we, Davega Bros., agree and bind ourselves to erect on the premises aforesaid a three story, brick, metal roofed building to be at least one hundred feet long, and we further agree and bind ourselves to erect tlie wall on the southern boundary of said lot with apertures for joists to' be used by the owner of lot numbered (14) fourteen in block numbered (71) seventy-one, at any time the owner of lot numbered (14) fourteen in block numbered (71) seventy-one may choose to erect a building thereon, without cost to the owner of said lot for saidf wall; for a building of like dimensions. In testimony whereof, we have hereunto' set our hand's and seals this 24th day of September, 1887.” (Signed^ “Davega Bros.” and duly attested. Tlie exigencies of this special appeal require of us a construction of this agreement in so far a,s it bears upon the asserted rights of Davega Bros., who* have erected the building stipulated for on lot 13, and its southern wall in accordance with the stipulation, to enjoin Ware from erecting a two story brick house on lot 14 and joining it onto the southern Avail of Davega Bros.’ said building on lot 13. This southern AArall was not erected wholly, or eAren mainly on lot 13, but of its eighteen inches breadth or thickness, fourteen inches is rested on-loti 14 and only four inches on lot 13. It is claimed for Davega Bros, that the intendment of the agreement thus executed by them and accepted by Ware was that the Avail should rest in part upon both lots, and that its precise location — ■ more on 14 than 13 — is Avithin the contemplation and authorization of the Avriting. For the purposes of the determination of the case a,s it is noAV presented, we shall -assume that these -positions- of appellant are Avell taken, aerad that by force of this undertaking by Davega Bros, and Ware’s acceptance of it, the former acquired the right to erect this Avail to> the extent stated. on Ware’s lot 14. Of course, the mere sale Avithout more of lot 13 to them gave Davega Bros, no such light, and if they did it at all, as counsel insist, and as Ave assume they did, they acquired it under this agreement, constituting, as it did, a part of the transaction of the sale by Ware, to them. So far as this' agreement! indicates and so far as appears in any Avay in the case, Ware’s only interest in the character of building to be erected on lot 13 was that the wall of it next to his remaining lot should be of brick AAltli apertures for joists left in it sufficient in number and position for the joining onto this Avail of a three story house which might.be erected on lot 14. The consideration moving Davega Bros, into this covenant may have been the right they by it' acquired to erect one Avail of their building mainly on. land! AAdiich did not belong to them or it may have- been a, reduction in the purchase price of lot 13, singly or in connection Avith the acquisition of the right to rest, the wall largely upon lot 14. That the consideration for their covenant was one or both of the matters- just mentioned, there can be little if any doubt. It is not pretended that the joining onto their building of another of the same dimensions and even constructed of like material would have been of any advantage or benefit to their building or to them in any other Avay. It is alleged in the bill that the joining o-nto this Avail of any building of less than three stories in height would impair and Aimken the Avail, endanger their building and, thus, irreparably injure them. This, however, is- specifically denied in the ansAver, and the affidavits submitted on the motion to dissolve the tempora-rv injunction are satisfactory to show that the joining on of a building of two stories Avould not injuriously affect the Avail ati all. It is also alleged in the bill that the joining onto Davega Bros.’ building of one of less height would entail greater danger from fire to> the former than would result from a building of the same height; but this seems unreasonable and is denied by the answer and disproved by the affidavits. With these preliminary suggestions and assumptions Ave come now to inquire Avhether by force of the agreement executed by Davega Bros, and its acceptance by Ware the latter is precluded to erect on lot 14 a. building- of other dimensions than those of the building erected by Davega Bros, on lot 13. In the first place, it is not reasonable to suppose that Ware would have voluntarily and AAdthout consideration have so limited and embarrassed his use and enjoyment of his remaining lot. ■ It is improba,hie to- a degree that he, after having accorded full consideration to Davega Bros, for erecting the AArall as that he could join onto it, AAdthout any reference to- or account being taken of the character o-f the building he should erect, should have without money and Avithont price materially lessened the value of his property by restricting his use of it to the erection of a building o-f prescribed dimensions. In the next place, it is equally unreasonable and improbable that Davega, Bros., having already received full compensation for leaving apertures in their southern Avail for joists, should have insisted upon a further consideration for so doing; and especially so when this further consideration was one solely of detriment to' Ware, and as we have seen of no sort of benefit to them. There might have been some occasion from tlie point of view of Davega Bros, for' an engagement on the part of Ware to construct the building on his lot of uninflammable material — a,s of brick with a metal roof — as making for the immunity of their own building from fire, and if they had. had in mind to' secure an additional consideration and benefit to themselves for building their wall for future use by Ware, it would seem in all reason that the stipulation would have had reference to Ware’s building in this respect, and! nob to its dimensions at all. So that we feel safe in the conclusions that nothing passed to- Ware to induce him to limit and curtail the uses of his lot and consequently its value by agreeing to erect only a three story one hundred foot building upon it, that Davega Bros, had no interest to be sub-served by requiring such an agreement, and that, of consequence, looking thus to the whole transaction and the situation of the parties, the mind is so1 inclined against the parties having entered into such a stipulation of only positive detriment to-one without benefit to the other, as that the writing must clearly import it or it must be held not to have been made. Again, this covenant is signed by Davega Bros, and not by Ware. All its express engagements are by and from Davega Bros, to Ware. It expresses no undertaking of Ware whatever. And while wo are proceeding upon the assumption that Ware’s acceptance of the covenant saddled upon, him whatever the paper fairly construed imports that he assumed to do, yet there is potency in the suggestion that so important a matter as a covenant on Ware’s part to use his lot only for the purpose of erecting a three story building thereon would not have been left to inference or construction had it been the intention of the parties that Ware should assume this burden, but would have been clearly expressed in a writing signed by him. Recurring to the language of the agreement, we do not find! that it clearly, or at all in fact, imports a covenant on Ware’s part not tn build a two story house, or any other than a three story house oil lot. 14. The words, “for a building of like dimensions,” are. at the (-aid of the writing. They do not aptly and smoothly join themselves on to the words which immediately precede them. They relate not. to the immediate preceding words or stipulation, but have reference to> the stipulation for joist apertures further back in the writing. * They appear to have been added as an afterthought and to make clearer a term of the covenant Avhicli upon reading the paper the AA'riter of it deemed obscure. Thci/ relate to the e.rtcui to -which joist apertures should be let into the Avail. The Avriting preceding this, clause did not in express terms prescribe the number, position or extent of the joist apertures, to be left in the Avail for joining thereto a building on lot 14. It. is not therein stated whether they should extend the whole length of the Avail, nor Avhetlier they should extend to the top of it. It is not therein set forth that the apertures should be for an hundred foot building, nor for a building of one, two, or three stories. . The purpose1, however. AA'a.s for the apertures to extend over the entire three story, hundred foot Avail. Possibly the Avriting without its last clause Avould have imported and been construed to proAdde for apertures covering the Avliole wall. But that there might he no room for doubt or subsequent dispute about this, and, in our opinion, for no other propose, words Avere added making the coAmiant plain and unmistakable in this regard. The Avords, as Ave have seen, were: “for a building of like dimensions.” They .Avere proper and necessary to a clear expression of the purpose of the parties that, the whole of this wall should be provided with apertures for joists for War’e use. They AA'ere added to the Avriting not to impose the burden of building a. three story'-, hundred foot house on him, if lie should build at all, not to his detriment at all, but for his benefit, by making it clear beyond doubt and room for dispute that the covenantors were to provide apertures for joists over the whole surface of their southern Avail. The intention in this connection Avould. perhaps stand out in holder relief if Ave transpose this last, clause aaad set it down in juxtaposition to that part of the text to Avhich it obviously relates. The paper would then read: and we further agree and bind ourselves to erect the Avail on the ■ southern boundary of said lot with apertures for joists for a building of like dimension s} or, In other Avords. with sufficient joist apertures for joining onto it of a three story building one; hundred feet in length. But without more or Avithout such transposition, the clause in question is merely a part of the covenant to let apertures for joists into the Avail, and its sole purpose and effect is to' define the extent to Avhich apertures should he left iu the Avail, and this purely for the benefit of Ware. It Avas not intended to and it does not impose any duty or burden on Ware or his successors in estate in respect of the character of the building to he erected on lot 14. It secured to him the ¡right to have joist apertures let into the AA'hole face of the wall and to use the Avail and these apertures a® a part of any building he might choose to erect on lot. 14, whether of one, two, or three stories, and it leaves him and his grantees AAdiolly unfettered as to the character of building they may join onto the Avail.

Our conclusion, therefore, is that on the case made; by the hill and ansAver and affidavits, the chancellor properly sustained 'the; motion to dissolve the temporary injunction, and the decretal order dissolving the injunction Avill he affirmed. »

• We have considered the affidavits only because the motion to dissolve was submitted on them as well as upon the denials of the answer, and they Avere offered by both parties without objection from either.

Affirmed.