Rindge v. . Baker ( 1874 )

This is an action brought to recover the one-half of the amount of the expense incurred by the plaintiff in building a party wall between the premises of the plaintiff and the defendant. The plaintiff bases his right of action on a parol agreement between him and the defendant. It appeared at the trial, according to the testimony of both parties, that there had been such an agreement to build a stone wall, which was suitable as a foundation for a partition wall to rest upon, and that was actually carried out by their mutual consent and acts. Whether there was an agreement to go further, and to build a party wall, was contested. The plaintiff's claim was, that there was an agreement to build at joint expense, a wooden partition between buildings to be erected on the respective lots of the parties, and that this was afterward so modified as to substitute a brick partition wall in its place. The question was submitted to the jury in the following form: "Did the defendant, E.D. Baker, agree with the plaintiff, H.A. Rindge, that he would join with said Rindge in the building of the brick wall in question?" The jury found in the affirmative.

The form in which the case is presented for the consideration of this court is, assuming the existence of the parol agreement, and that the foundation wall was actually built by both parties, and that the defendant now refuses to go on and complete the brick portion of the wall, can the plaintiff, upon due notice, complete that portion of the wall at his own expense, and recover from the defendant his proportion of the outlay? It is to be observed that this is not the ordinary case of an easement created by parol, but that it is a more special inquiry, whether a parol agreement to build a wall is enforceable in a court of justice, and if so, whether it can be substantially enforced under the facts of the present case by an action to recover the amount necessarily expended in construction. It will be proper to consider at the outset whether a written agreement to build a wall is capable of enforcement in equity. If not, it would of course follow that a parol agreement partly executed cannot be. On the general question of enforcing a covenant to build or to repair, there has been great diversity of opinion, and the decisions are conflicting. The leading authorities in England are Mosely v. Virgin (3 Ves., Jr., 185); Wilkinson v. Clements (L.R. [8 Ch. Appeals], 96). Other cases are collated in Story on Equity Jurisprudence (§§ 725, 729 [11th ed.]). In Wilkinson v. Clements (supra), one of the latest decisions by the appellate court, it is said to be the settled rule in England that the court will not in general enforce a covenant to build houses. The principal reason seems to be that damages supply an adequate compensation. Where, on the other hand, damages will not answer, the usual rule prevails, and a remedy will be granted in equity, on account of the inadequacy of the relief at law. This was the result in that case; and a party, having performed his part of the contract, had his remedy, in equity, against the other party. The point in Mosely v.Virgin was, that an agreement to build may be enforced if sufficiently certain and specific. This is the view of Mr. Justice STORY. The cases earlier than Wilkinson v. Clements are collected in Beck v. Allison (4 Daly, 421), in which case the conclusion is maintained, in an elaborate opinion, that, in a proper case, the jurisdiction to decree specific performance of a covenant to repair exists, the case being placed on the same general ground as that of a covenant to build. The present case falls within the rule established by these authorities. It was not a general and indefinite covenant. The place on which the wall was to be erected was fixed by the contract; its length, height and thickness were prescribed, as well as the materials of which it was to be constructed. This is the test given inMosely v. Virgin (supra), and in Story on Equity (§ 727). The plaintiff could have had no adequate remedy in damages, as he needed to have the wall stand on the defendant's land, in order to carry out his building as it was planned. The result is that if the agreement had been in writing it would have been enforced by a court of equity.

The next inquiry is, whether the act of building the stone foundation wall was such a part performance as to take the case out of the statute of frauds. This is not an instance of a mere parol license, executed in part; it is rather that of an agreement, from which the defendant was to receive the same benefit as the plaintiff. The inducement on the defendant's part to allow the plaintiff's wall to stand on his land, and to aid in constructing it, was the fact that he was to receive a benefit from having the same support to his own part of the wall, from the plaintiff's land, and a corresponding service and expenditure. If, then, the court will not entertain an action for specific performance in the present case, it will be because there are some parol agreements which have been partly carried out that do not fall within the general rule that part performance takes the case out of the statute of frauds. No reason can be given why an ordinary contract to purchase land in fee shall be withdrawn from the statute, by part performance, which will not apply to the present case. Mr. Fry states the rules as follows: (1.) The act of parol performance must be referable to the alleged agreement and no other. (2.) They must be such as render it a fraud on the defendant, to take advantage of the contract not being in writing. (3.) The agreement to which they refer must be such as in its own nature is enforceable by the court. (4.) There must be proper evidence of the parol agreement. (Fry on Specific Performance [Am. ed.], 251.) All of these exist in the present case. In commenting upon the third, he remarks that the agreement must be of such a nature that the court would have had jurisdiction in respect to it in case it had been in writing. It has already been shown that the court would have enforced the contract between the plaintiff and defendant had it been written.

The next inquiry is, whether the plaintiff was bound to resort to the remedy by specific performance? It would seem not. Specific performance is merely a remedy for an existing right; each of the parties, by force of the contract, became a trustee for the other; there was an equality of burdens as well as of rights growing out of the contract relations of the parties. Specific performance is but a single mode of enforcing the equitable duties growing out of these relations. The parties have voluntarily subjected themselves to the rule that "equality is equity;" each of them having thus become equitably bound to pay his share of the amount necessary to construct the wall, is liable in equity to an action for contribution. This has been applied to cases of contribution between co-contractors. (Story on Equity, § 64, f; 1 Parsons on Contracts, 31.) The whole doctrine rests upon principles of natural justice and equity. The plaintiff had his choice of remedies. He might demand specific performance; in which case he would pay only one-half of the expense, and insist upon the defendant's rendering the other half; or, after demand and refusal, he might build the entire wall and bring his action for contribution. He has elected to take the latter course.

It is claimed that the present action is not an equitable one. The fact that it is brought for money is not decisive upon that point. The real test in such an action is this: if it be brought for damages for breach of contract, it is a case at law; if it be brought for money, by way of performance of the contract, it is a case in equity. Thus, where a vendor in a contract for the sale of land sues for the price, his action is equitable. The mutuality of the contract gives each of the parties the same remedy; and yet the recovery by the vendor is simply in money. If this theory did not prevail in respect to contracts partly performed, the vendor would be utterly without remedy, since it is well settled that there is no action at law on a parol contract in part performed. That the vendor can have an equitable action for money is established in Crary v. Smith (2 Comst., 60); Brown v. Haff (5 Paige, 240); Willard on Equity Jurisprudence, 290. The action in the present case was brought for relief, and the facts disclose an equitable cause of action. The fact that it was tried by jury, with consent of parties, is immaterial, as the court might, of its own motion, have submitted the questions to a jury; and any informality in the mode of procedure was waived by mutual consent. No preliminary settlement of the issues is requisite. (Colman v. Dixon, 50 N.Y., 572.)

This view of the case is strengthened by the fact that the common-law courts hold that if a tenant in common, or joint tenant or other person who is under a duty to repair, fails to contribute after a demand by a co-tenant or co-obligor, the latter, on incurring the necessary expense, may bring an action on the case to recover the proportionate share of the defaulting party. (Loring v. Bacon, 4 Mass., 575; Mumford v. Brown, 6 Cow., 475; Doane v. Badger, 12 Mass., 65.) This action is based on a failure to discharge the equitable duty imposed on the defendant which is derived from the principle of natural justice lying at the root of the doctrine of contribution. It is, however, urged that the defendant does not, by this action, obtain an easement of permanent value to himself. The answer is that if he does not, he suffers only by his own neglect. The correct view, however, is, that the judgment will establish his right and act as an estoppel against the plaintiff and all claiming under him, as the existence of the easement is the very proposition which it is necessary to establish in order to recover. A final suggestion is that the parol contract having been partly executed, the parties to it are estopped from denying the existence of the easement. The authorities are quite distinct to this effect, and the proposition is fully justified by the rules of estoppel as applied to the case of expenditures made upon land on the faith of the representations of an owner. (Brown v. Bowen, 30 N.Y., 541; 3 Wn. on Real Property, 68, and cases cited.) In Campbell v. McCoy (31 Penn. St., 263) a parol executed agreement to erect a dam was held to be irrevocable in equity, and that it created a permanent right which would survive the erection itself. (Rerick v. Kern, 14 S. R., 267.) The same rule was applied to the laying down of water-pipes in Le Fevre v. Le Fevre (4 S. R., 241). InMcKellip v. McIlhenny (4 Watts, 317) the doctrine was applied to a license to flood land, on which money and labor had been expended, on the faith of the license. Beatty v. Gregory (17 Iowa 114) is a case of a wall partly built on a licensee's land.

There is, in some of the authorities, a confusion growing out of a want of accurate discrimination between cases arising in law and equity. At law a parol license, owing to the statute of frauds, is revocable at the pleasure of the licenser, notwithstanding the expenditure of money on his land by the licensee. The cases on this subject are so numerous and so uniform that it would be a waste of time to refer to them. In equity the rule is quite different. As a court of equity will take a parol contract for the sale of lands out of the statute of frauds, when it is partly performed, it will, on the same principle, treat an executed parol contract for an easement as equivalent to a grant under seal, where the parties cannot be restored to their original position. Under this doctrine the acts of the parties in the present case have created a permanent easement upon the land, of which all who may purchase of them are bound to take notice. The judgment for the plaintiff, in the present case, simply recognizes the existence of that easement, and the added duty or obligation of mutual contribution for its erection and maintenance.

The judgment of the court below should be affirmed.