Shaw v. Hitchcock , 119 Mass. 254 ( 1876 )

Colt, J.

The contract which is relied on to support the plaintiff’s claim to recover one half the value of the partition wall, must be interpreted by the actual condition of the property of the parties at the time the agreement was made. They owned adjoining lots. The plaintiff’s lot was vacant. The defendant’s lot was occupied by a building one story high, which was of brick on all sides except the one next the plaintiff’s lot. On that side it was of wood, and rested, by permission, on the plaintiff’s land. The plaintiff’s purpose was to erect a building on his own land which should be four stories high. In doing this, it would be necessary to remove the wooden side of the defendant’s building, so as to make room for the partition wall located one half on each lot. The parties thereupon agreed that either might build the wall, and that the other might at any time use as much of it as he might choose “ for the erection of any building,” paying to the party erecting the wall the appraised value of so much of it as he shall then use. This is followed by a clause restricting the location of any building to be erected on either lot.

The plain interpretation of the contract is that the defendant incurs no liability to pay for the value of the wall until he makes some use of it in the future erection of some building, or of some addition to the old one. He has erected no building since the contract was made. Judgment for the defendant.