Jager v. Adams.

D. Thaxter and F. Bartlett, for plaintiff.

GRAY, C. J. The plaintiff relies on the duty of every owner of land to keep the buildings or structures thereon in such a condition that they shall not, by falling or otherwise, cause injury to property or persons lawfully upon adjoining land.

But, assuming that this duty is absolute while the structures are in the condition in which the owner has put them, or knows or is bound to know them to be, yet, when he has been guilty of no negligence, and the condition of the structures has been changed, so as to render them injurious or dangerous, by vis major, or the act of a third person, which the owner had no reason to anticipate, he cannot be held liable for the injury, or bound to make the structures safe, until he has had a reasonable time, after they have so become dangerous, to take the necessary precaution. Nichols v. Marsland, L. R., 10 Ex. 255, and 2 Ex. D. 1; Gray v. Harris, 107 Mass. 492; s. c., 9 Am. Rep. 61.

In the case at bar there was no evidence that the defendant's wall was dangerous or could have fallen while both buildings stood, or while both walls remained in the condition in which they were left by the fire, or that the defendants had notice, or were bound to know, that the wall on the adjoining estate had been or was about to be removed; and the full court concurs with the justice who presided at the trial in the opinion that the evidence introduced was insufficient to support the action.

Judgment on the verdict for the defendants.

JAGER V. ADAMS.

(123 Mass. 26.)

Negligence in erecting wall near highway.

The plaintiff, while walking on a sidewalk in front of a building which the defendant was erecting, was struck and injured by a brick falling therefrom; there were no barriers to prevent the approach of foot passengers. Held, that the defendant might be liable for the injury on account of the omission to construct barriers, although there was no negligence in suffering the brick to fall.

Jager v. Adams.

ORT for injury to the person. The facts appear in the opinion.

TORT

G. O. Shattuck & J. L. Eldridge, for plaintiff.

A. A. Ranney, for defendant.

COLT, J. The plaintiff was struck by a falling brick, or part of a brick, while passing along the sidewalk in front of a building in process of erection, upon the front wall of which, in an upper story, the defendant, who was doing the mason work of the building under a contract, had men at work laying brick from the inside. The plaintiff contended that the defendant was liable for not preventing the approach of foot passengers by suitable barriers across the walk, and also for allowing his men to work in that place without protection in front, to prevent the falling of brick or other material upon the thoroughfare below.

There was evidence, consisting in part of the defendant's admissions, from which the jury might have found that the brick was dropped by one of the defendant's men, or fell off the wall at the point where they were at work. And it was possible for them to find that the immediate falling was not shown to have been due to any act which, considering the nature of the employment, could be called the negligent act of the men at work, or of any one of them. To meet this aspect of the case, the plaintiff asked the court to rule that, even if the brick fell by accident, the defendant might be liable for neglect in putting men to handle brick where a passing traveler would be liable to injury from it. The court refused this, and, while instructing the jury that the plaintiff must satisfy them that her injury was the result of the fault or negligence of the defendant, or of some person in his employ, also told them that, if the falling of the brick was the result of an accident, and not of any negligence of the defendant's servants, he was not liable; and that the mere fact, that a piece of brick fell from the building that the defendant was erecting, would not justify the jury in presuming that he was guilty of a lack of reasonable care.

But it is a matter of common knowledge and experience, that, when men are breaking and handling bricks in the construction of such a wall, some of the material may fall, although the workmen, in fitting and laying it, are in the exercise of ordinary care. The immediate cause of the fall in such case may indeed be accidental,

Boston Ice Company v. Potter.

but it is an accident which the builder of the wall, in view of the danger to life and limb, may be bound to contemplate and provide against by safeguards or barriers, so that the traveler may not be exposed to injury; not to do so would be an "omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do.” ALDERSON, B., in Blyth v. Birmingham Waterworks, 11 Exch. 781, 784.

The jury found that the plaintiff had failed to prove that the brick which struck the plaintiff fell through the negligence or carelessness of the defendant or his agents, or employees, and returned a verdict for the defendant.

In view of the plaintiff's request, which sufficiently, though imperfectly, called attention of the court to the distinctions above stated, and the instruction which was actually given as to the accidental falling of the brick, with the form of the finding by the jury, we think the jury may have misunderstood or been mislead by the rulings of the court, and the entry must be

Exceptions sustained.

BOSTON ICE COMPANY V. POTTER.

(123 Mass. 28.)

Contract — Not implied without knowledge and assent.

A, who had purchased ice from B under a contract, becoming dissatisfied. terminated that contract and made a new contract for ice with C. B afterward bought C's business and delivered ice to A, who had no notice or knowledge of the purchase until after the ice was delivered and used. Held, that B could not recover for the ice from A.

A

CTION on an account for ice sold and delivered. Answer, a general denial. The plaintiff at the trial gave evidence of the delivery of ice to defendant, and of his acceptance and use of it from April 1, 1874, to April 1, 1875, and that the price claimed was the market price. The ice was left at defendant's dwellinghouse, and the amount was regulated by the orders of his servants. The plaintiff in 1873 furnished the defendant with ice, but the VOL. XXV-— 2

Boston Ice Company v. Potter.

defendant became dissatisfied and terminated the contract, and made a contract with the Citizens' Ice Company for ice. Before April, 1874, the latter company sold its business to the plaintiff, with the privilege of supplying ice to all its customers. There was conflicting evidence as to whether defendant was notified of this change, and the court below found that he was not until after April, 1875; that there was no contract except such as might be implied from the delivery and acceptance, and that defendant had a right to assume that the ice was delivered by the Citizens' Ice Company, and that the action could not be maintained. The plaintiff excepted.

J. P. Farley, Jr., for plaintiff.

E. C. Bumpus and E. M. Johnson, for defendant.

ENDICOTT, J. To entitle the plaintiff to recover, it must show some contract with the defendant. There was no express contract, and upon the facts stated no contract is to be implied. The defendant had taken ice from the plaintiff in 1873, but, on account of some dissatisfaction with the manner of supply, he terminated his contract, and made a contract for his supply with the Citizens' Ice Company. The plaintiff afterward delivered ice to the defendant for one year without notifying the defendant, as the presiding judge has found, that it had bought out the business of the Citizens' Ice Company, until after the delivery and consumption of the ice.

The presiding judge has decided that the defendant had a right to assume that the ice in question was delivered by the Citizens' Ice Company, and has thereby necessarily found that the defendant's contract with that company covered the time of the delivery of the ice.

There was no privity of contract established between the plaintiff and defendant, and without such privity the possession and use of the property will not support an implied assumpsit. Hills v. Snell, 104 Mass. 173, 177. And no presumption of assent can be implied from the reception and use of the ice, because the defendant had no knowledge that it was furnished by the plaintiff, but supposed that he received it under the contract made with the Citizens' Ice Company. Of this change he was entitled to be informed.

Boston Ice Company v. Potter.

A party has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture, or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into. If the defendant, before receiving the ice, or during its delivery, had received notice of the change, and that the Citizens' Ice Company could no longer perform its contract with him, it would then have been his undoubted right to have rescinded the contract and to decline to have it executed by the plaintiff. But this he was unable to do, because the plaintiff failed to inform him of that which he had a right to know. Orcutt v. Nelson, 1 Gray, 536, 542; Winchester v. Howard, 97 Mass. 303; Hardman v. Booth, i H. & C. 803; Humble v. Hunter, 12 Q. B. 310; Robson v. Drummond, 2 B. & Ad. 303. If he had received notice and continued to take the ice as delivered, a contract would be implied. Mudge v. Oliver, 1 Allen, 74; Orcutt v. Nelson, ubi supra; Mitchell v. Lapage, Holt's N. P. 253.

There are two English cases very similar to the case at bar. In Schmaling v. Thomlinson, 6 Taunt. 147, a firm was employed by the defendants to transport goods to a foreign market, and transferred the entire employment to the plaintiff, who performed it without the privity of the defendants, and it was held that he could not recover compensation for his services from the defendants.

The case of Boulton v. Jones, 2 H. & N. 564, was cited by both parties at the argument. There the defendant, who had been in the habit of dealing with one Brocklehurst, sent a written order to him for goods. The plaintiff, who had on the same day bought out the business of Brocklehurst, executed the order without giving the defendant notice that the goods were supplied by him and not by Brocklehurst. And it was held that the plaintiff could not maintain an action for the price of the goods against the defendant. It is said in that case that the defendant had a right of setoff against Brocklehurst, with whom he had a running account, and that it is alluded to in the opinion of Baron BRAMWELL, though the other judges do not mention it.