Cutter v. Williams , 85 Mass. 196 ( 1861 )

Bigelow, C. J.

The construction given at the trial to the stipulations in the contract with the city concerning the erection of partition walls was sufficiently favorable to the defendants. All parts of the agreement having a relation to each other are to be construed together, in order to arrive at the true intent of the parties. Therefore the clause which provides for the erection of partition walls is to be taken in connection with that which relates to the size and dimensions of the buildings which the parties agreed to erect on their respective lots. It was the duty of the plaintiff, in fulfilment of his contract, to build a wall which should be sufficient and suitable as a partition between houses “ not less than three stories in height exclusive of basement and attic, with exterior walls of brick, stone or iron.” If he erected a weak or insufficient wall, he would not only have committed a breach of his contract with the city, but also of the implied agreement which he was under to the defendant Williams as an adjoining owner. He could not know the nature or character of the building which Williams might elect to put on his lot. Nor was he bound to inquire. Certainly, if he had built a wall which was not suitable for such buildings as were specified in the contract with the city, he would have been liable to Williams for any damages which might ensue to him in consequence thereof. By erecting a wall which was suitable and proper for the class of buildings contemplated by the contract, under which both parties held the title to their land, the plaintiff has entitled himself to recover of the defendants a proportional part of the cost thereof.

The question then arises how that proportion is to be determined 1 The answer is found in the words of the contract. It is such “ proportional part of the cost thereof for such part of said wall as he or his heirs or assigns may use or occupy; ” that is, such part of said wall as his building may cover, having reference to the surface of the wall and not to its thickness. This construction follows necessarily from the fact established by the verdict, that the wall is such as was fit and proper for the buildings which the parties were bound to build on their land. It is this wall which Williams uses to the extent to which it i covered by his building. The defendants are not made to pay for a structure which is of unnecessary size or cost, or which is unsuitable for the building of Williams, but only for a wall which is such as he would have been bound to erect in order to fulfil the contract under which he holds his estate, and in exact proportion to the extent to which he occupies it.

Exceptions overruled.