
    Joseph Jenkins vs. John P. Spooner.
    The owner of an estate having agreed with the cestui que trust of an adjoining estate, to build a new partition wall between the two estates, in the place of the wall then standing, for the benefit of both, and having built the same accordingly, on a promise by the latter, that he would pay for one half of the wall, if at any future time he should have occasion to use it for any other purpose than that for which the old one was then used; the trustees of the last-mentioned estate subsequently sold and conveyed the same, without making any mention of the partition wall, but with the consent of the cestui que trust signified by his signing and sealing the deed; and the purchaser subsequently made use of the wall for a different purpose, from that for which the old one was used; it was held, that the agreement on the part of the cestui que trust was merely personal, and that his assent to the deed of the trustees by joining therein was not a use of the wall by him, within the meaning of his agreement.
    This was ail action to recover the sum of $250, being one half of the expense of building a brick partition wall. The case was tried before Bigelow, J., in the court of common pleas.
    The plaintiff alleged in his declaration, that the defendant, on the 2d of April, 1832, in consideration that the plaintiff would erect a partition wall on the boundary between an estate on Bowdoin street, in Boston, owned by the plaintiff, and an estate adjoining thereto, on the same street, agreed to pay the plaintiff for one half of the wall, if at any future time the defendant should have occasion to use the same for any other purpose than the wall then on the premises was used; and the plaintiff averred, that he did erect on the boundary line a partition wall, the cost of which was five hundred dollars, and that the defendant had used the same for a different purpose than that for which the old wall was used, prior to the 2d of April, 1832.
    To prove his case, iha plaintiff introduced two letters, one from him to the defendant, dated March 31st, and the other from the defendant to him, dated April 2d, 1832.
    The letter from the plaintiff to the defendant was as folows: —
    “ I am about to build on the southerly line of your estate in Bowdoin street, and it has occurred to me, that if your wall were entirely removed, and the wall of my house placed six inches upon your land, there would be an obvious advantage to ns both. It would give you about eight inches more space in your shed, and me six inches in my house.
    “ Yen wall is considerably broken and the under part extends a good deal upon my land. The above arrangement will obviate these difficulties. Now, sir, if you are willing to make this arrangement, you will please let me know as soon as I raeticable.
    “ The wall which I want may hereafter be used to advantage, if you should make any other disposition of your estate than the present.”
    The defendant’s letter to the plaintiff was as follows : —
    “ I am willing to accede to your proposition in relation to the wall, provided it can bt done without subjecting me to present expense. I will also agree to pay for one half of the wall, if at any future time I shall have occasion to use it for any other purpose than the present one is used.”
    The plaintiff also offered evidence, that the new partition wall was built by him between the two estates, soon after the dates of the two letters, and that the same was not used for any other purpose than the old one, until some time in the year 1847, before the commencement of this action.
    It further appeared in evidence, that, at the date of the letters, the estate adjoining the plaintiff was vested in certain trustees, who held the same in trust for the wife of the defendant, by virtue of a marriage settlement; that the defendant had no legal title to the premises whatever; that on the 25th of March, 1845, the trustees conveyed the estate to one Greenleaf C. Batchelder, in fee, to which conveyance the defendant and his wife were parties, by signing and sealing the same in token of their consent to the conveyance; that the deed contained no mention of or reference to the partition wall; and that Batchelder, after the conveyance, did make use of the partition wall, for a different purpose from that for which the old one had been used, prior to the dates of the letters above mentioned.
    There was no evidence to show, and the plaintiff did not pretend, that the defendant had ever used the wall for any other purpose than the old wall was used for, unless the sale by the trustees to Batchelder, and his use of the wall was in contemplation of law a use by the defendant.
    Upon this evidence, the judge instructed the jury, that according to the agreement of the parties, the evidence of a use of the partition wall by Batchelder alone, for a purpose different from the use made of it prior to April 2d, 1832, was not sufficient to render the defendant liable in this action.
    The jury thereupon returned a verdict for the defendant, and the plaintiff excepted.
    
      W. Hilliard, for the plaintiff.
    
      E. Blake, for the defendant.
   Shaw, C. J.

Supposing the promise contained in the defendant’s letter, in answer to the plaintiff’s proposition, to be made on a good consideration, the defendant not being the owner of the land, and having but a remote and contingent interest in it, the promise was purely personal and must be construed strictly according to its terms. Spencer v. Marriott, 1 B. & C. 457. Such a promise to pay for the wall, in any contingency, was not asked for by the plaintiff’s letter, and the bargain without it would probably have been a beneficial one to the plaintiff, because it would have enabled him, without building a more expensive wall, than he must have built on his own land, to gain half a foot of land in the whole line. It is also quite, probable, that the plaintiff made his proposal under a belief that the defendant was the owner of the land; and he seems to have expected nothing more than a license to erect the one half of the wall on the trust-estate, which he did do, and had the benefit of it. But, by thus building on the land of another, without a stipulation for leave to remove it, the wall became the property of the owner of the soil on which it was built.

Considering the stipulation in the defendant’s letter as a promise upon a legal consideration, it was personal, conditional, and to be construed strictly; and the court are of opinion, that the act of the defendant, in joining with his wife in a deed expressing their assent to a conveyance by the trustees, was not making use of the wall upon any occasion or for any purpose of his own, within the meaning and terms of the promise relied on, and that the direction of the judge of the court of common pleas was right.

Exceptions overruled.  