Gorham v. Gross
Massachusetts Supreme Judicial Court
Contract, with counts in tort. The count in contract was as follows: “ And the plaintiffs say that the plaintiffs and the defendants mutually executed and entered into an indenture, a copy of which is hereto annexed ; and were the respective owners of two adjoining parcels of land on the west side of Main Street, Worcester, as in said indenture set forth; that the defendants erected the party wall therein mentioned, but erected the same negligently, improperly and without…
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Contract, with counts in tort. The count in contract was as follows: “ And the plaintiffs say that the plaintiffs and the defendants mutually executed and entered into an indenture, a copy of which is hereto annexed ; and were the respective owners of two adjoining parcels of land on the west side of Main Street, Worcester, as in said indenture set forth; that the defendants erected the party wall therein mentioned, but erected the same negligently, improperly and without due care, and by means thereof said wall fell upon the plaintiff’s said close, and injured and destroyed a building…
1Opinion of the CourtGray, C. J.
If the defendants had undertaken, for a sufficient consideration, to build a wall for the plaintiffs, an action of contract might doubtless have been maintained for negligent performance of that undertaking. Vin. Ab. Actions, P. 3. Elsee v. Gatward, 5 T. R. 143. Thorne v. Deas, 4 Johns. 84, 99. 1 Spence Eq. Jur. 243, 249.
But upon advisement we are all of opinion that no undertaking in this respect is expressed in, or can be inferred from, the written agreement into which the parties have entered.
By that agreement, each party grants to the other a license to build a party wall upon the…
2Cases cited1 opinion
- Thorne v. DeasNew York Supreme Court · 1809
3Cited by2 opinions
- Glover v. MersmanMissouri Court of Appeals · 1877
- Williams v. WarbasseNew Jersey Court of Chancery · 1888