Lester v. Barron ( 1863 )

By the Court, James C. Smith, J.

The plaintiff claims that the defendant is liable to him in this action by the terms of a clause in the deed from Walbridge to the defendant, which is in these words : “ The above conveyance is executed, subject to the wall now standing on the north line of said lot, the party of the second part assuming all the liability under or by reason of any contract now existing in respect to said wall.” This is not an agreement, in terms, to pay the plaintiff, or to pay for the wall or any part of it, but is simply an undertaking on the part of the defendant to assume a certain liability then existing; and a question arises as to whose liability he assumed. Was it that of any and every person who may have entered into a contract respecting the wall referred to, or was it merely the liability of Walbridge, the party with whom he ■ was contracting ? It seems to me the latter is the true construction of the clause, and that the parties thereby intended nothing more than to limit Walbridge’s covenant, and to save him harmless from all personal liability. If this interpretation of the defendant’s agreement is correct, it follows that the plaintiff has no right of action thereon, unless Walbridge was personally liable to him; and that does not appear. The assignment from Connor of the contract for a deed, under which Walbridge subsequently obtained his title, imposed no personal liability upon him, nor does Walbridge in his testimony state that he was liable. He says, merely, that the defendant, having bid off the premises, at a public sale, at the price of $700, objected to take them on account of the contract between the plaintiff and Connor, and he (Walbridge) “deducted $100 in order to reconcile the matter.” The plaintiff insists, that this arrangement was a virtual admission by both parties of the liability of Walbridge, which the defendant should not now be permitted to deny. I think not. The testimony hardly warrants the conclusion that the defendant, in consideration of $100 intended to assume an undoubted obligation for more than twice that sum. It indicates, rather, that the parties being in doubt as to whether Walbridge was in fact liable, under the circumstances, the defendant tools the rish, in consideration of the $100 allowed him by Walbridge; and this view of the transaction is consistent with the language of the deed.

[Monroe General Term, June 1, 1863.

The defendant is entitled to judgment on the verdict.

Judgment ordered.

E. Darwin Smith, Johnson and J, C. Smith, Justices.]