Waller v. Lasher

Waterman, J.

James B. Waller and Charles W. Lasher were the owners of adjacent lots in Chicago. Lasher has upon his south lot a brick dwelling which did not extend either to the front or rear of his lot. Lasher owned not only a lot south of Waller, but also one north and adjacent to Waller’s; so that Waller’s lot was between the two owned by Lasher.

The north wall of Lasher’s house was a party-well; the party-wall agreement provided that Waller might join to and use the same, as well above as below the surface of the ground, and contained the following condition:

“ Provided, always, nevertheless, and on this express condition, that the said party of the first part (Waller), his heirs, etc., before proceeding to join any building to the said partition wall, and before making any use thereof, or breaking into the same, shall pay or secure to be paid unto the said party of the second part, his assigns, etc., the full moiety or one-half value of said party-wall, or so much thereof as shall be joined to or used as aforesaid.”

Waller, desiring to build upon his lot, testifies that he went to Lasher and explained to him that he was going to put up a heavier building than Lasher’s, and that if he joined onto the wall it would damage both buildings; that in order to avoid this, it would be necessary for him, Waller, to underpin the wall and put in a deeper and heavier foundation; that Lasher consented to this, and to the going on of the work, and that thereupon he, Waller, proceeded with the work.

Lasher denies that he ever gave such consent. Lasher brought suit against the Wallers for damages caused by the settling of his house in consequence, as alleged, of the cutting into the wall by them.

The court instructed the jury that if the defendants built a dwelling adjoining to the party-wall, and for the purpose of building the same, cut into and made use of the party-wall, and cut into and removed the foundations of the party-wall, and joined to and used the party-wall as alleged in the plaintiff’s declaration, and all in such a manner that the wall settled, thereby injuring the dwelling of plaintiff as alleged in the declaration, then the plaintiff was entitled to recover such damages as the jury should believe from the evidence the plaintiff had sustained.

The defendants had pleaded leave and license to do what they did; they did not deny cutting into the wall, removing its foundations or joining to it; they only denied that any damage had resulted therefrom.

This instruction left the jury nothing to consider save the matter of damages.

It is, to be sure, the case that under the party-wall agreement, Waller was not authorized to make use of the party-wall until he had paid, or secured to be paid to Lesher, onelialf the value of such wall; but the defendants had pleaded a license to do what they did, and given evidence tending to sustain such plea; that is, the defendants claimed that not only had prepayment been waived, but that if the party-wall agreement did not authorize all that was done, the subsequent license was a consent to the underpinning, removing of foundations, etc., and a waiver of the matter of prepayment.

If such license was given, then for damage that necessarily resulted therefrom, appellants would not be liable, as, under the party-wall agreement, if prepayment had been made, it is undisputed there would have been a right to cut into and join to such wall; and thereupon, for damage that necessarily resulted from such cutting or joining, a plea of the agreement would have been sufficient answer.

Inasmuch as the first instruction entirely ignores the question of whether there was a license, and also makes no distinction between damage necessarily resulting from acts the work permitted, and damage which would not have happened had the work been done with proper care, it was erroneous.

The defendants set up that the work was not done by them but by independent contractors, to whom they gave the entire charge and control, not only of the work itself, but of the premises. We do not think this sufficient.

The defendants were sued as trespassers for doing that which they had no right to do. Surely it can be no answer to a charge of trespass upon real property to say, “I did not do this thing. I was never near the premises, having some work to be done which necessitated an entry upon and breaking of the close of my neighbor. I contracted with responsible parties to so break and enter, giving to them full control and possession over my premises and the work to be done.’’ The maxim “ Qui facit per alium faeit per se” is directly applicable to the defendants’ contention.

Even if the defendants acted under a license, the doctrine of independent contractors is not applicable.

If a license to do the work was given, it was conditioned upon an implied agreement upon the part of Waller that the work should at least be done in a skillful and careful manner, so as to avoid the doing of damage ; the implied contract was not that Waller would let the work out to independent contractors under an agreement that they should do it with proper care. He can not thus shift to the shoulders of another the burden of his undertaking.

Nor is it sufficient to show that the work Lotz and Thompson contracted with Waller to do, would, if done with reasonable care, have resulted in no damage to Lasher.

At the very least, Waller’s undertaking was that whatever work he had licensed to do, should be done with reasonable care; not that he would only authorize the doing of work, which, if done with reasonable care, would result in no damage. Hughes v. Percival, 8 L. R. App. Cases, 443.

The rule as to “independent contractors” can never be invoked to relieve a party from a liability he has himself, by a contract, assumed. Shearman & Redfield on Negligence, Sec. 176.

For the error mentioned the judgment must be reversed and the cause remanded. Reversed and remcmded.