
    The Methodist Episcopal Church of Dayton v. John Rench's Administrator.
    Bench agreed to build a store-house for Brown that would bear the weight of six hundred tons of iron, etc. Bench, after partly finishing the building, of materials, etc., that would not bear that weight, died. Brown afterward put in the store-house less than six hundred tons, and the walls fell and injured1 the plaintiff’s building, for which this action was brought against Bench’s-administrator. Held, that as no cause of action accrued in the premises, to the plaintiff, against Bench in his lifetime, there was no cause of action; to survive against his administrator, under section 398 of the code.
    This is a petition in error to reverse the judgment of the court, of common pleas of Montgomery county.
    The case is as follows:
    John Rench partly completed a building in Dayton for Samuel *B. Brown. After Rench’s death the building fell to the ground and injured the plaintiff’s church edifice, on the adjoining lot.
    The plaintiff brought an action against Rench’s administrators, for damages for the inj ury. The cause was tried at th e March term, 1856, of the court of common pleas of Montgomery county; and a bill of exceptions was then taken, from which it appears that “ The plaintiff, to maintain the issue on his part, offered evidence tending to prove that the building mentioned in the petition, as-erected by John Rench, in his lifetime and under his supervision and direction, adjoining the church building of the plaintiff, was in fact so erected by John Rench, and under his supervision and direction, up to the 30th day of August, 1853, on which day he died; that said Rench had agreed and bound himself to build said building for Samuel B. Brown, in a manner, and of strength sufficient and suitable for an iron and groceiy-store, and capable of containing and holding six hundred tons of iron and groceries; that said Brown, about two months after Bench’s death, and in pursuance of his contract with Rench, began to put iron and groceries, and had, on January 5, 1854, in said building four hundred, and seventy-six tons, properly arranged and distributed through the building, in the manner such iron and groceries were usually .distributed and arranged in iron and grocery-stores; that the build--
    
      ‘ing, so far as completed in Reach’s lifetime, was erected and constructed in pursuance of his contract with Brown, but was defective and insufficient through his default, negligence, and unskillfulness in erecting and constructing it; that by reason of defects and insufficiencies in the material and construction thereof, which insufficiencies and defects were in the building prior and at the time ¡of John Rench’s death, and which were caused by his unskillfulness, neglect, and default aforesaid in his lifetime, it fell down on the 5th day of January, 1854, about four months after John Rench’s •death, under the weight and pressure of said iron and groceries, through the defects aforesaid, and while said Brown was in the ■occupancy of the same as aforesaid, and, in falling, occasioned the •damage to the church building to the extent and amount set forth in the petition. And the plaintiff, not proposing to offer any testimony tending to show that the building *was so defectively, insufficiently, and negligently constructed that it would have fallen ■of its own weight, nor claiming that there was any testimony in the case tending to show that it did fall, or would have fallen, from its own weight, or that there was danger of its falling of itself, the •court being of opinion that upon such state of facts, although established by the evidence, the plaintiff would have disclosed no ■cause of action, and would not be entitled to recover, the court overruled said testimony, and arrested the same from the jury, .and the plaintiff offering no further or other testimony, the court therefore directed a judgment of nonsuit to be entered. To which •opinions and several overruling of the court the plaintiff excepted.”
    It is claimed that the court erred : 1. In overruling said testimony and excluding it from the jury; 2. In entering the judgment •of nonsuit.
    
      G. L. Vallandigham and John Howard, for plaintiff.
    P. Odlin, Gonover & Craighead, and E. W. Davies, for defendant.
   J. R. Swan, J.

The plaintiff claims to recover under section 398 ■of the code, which is as follows:

“ In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person •entitled or liable to the same.”

The bill of exceptions shows that John Rench died on the 30th of August, 1853. At the time of his decease he had in part completed the building'for Brown. But defects in the materials and construction existed when he died; so that the building, about four months afterward, by reason of the weight of iron put into it by Brown, fell, and injured the plaintiff’s building. Rench was liable to an action by Brown for the insufficiency of the materials and unskillful construction; but Bench’s default in this respect did not, nor did anything which transpired before his ^decease, furnish the plaintiff a right of action against him in his lifetime. And as the facts which existed between these parties when Rench died constituted no cause of action against him — no specific wrong having been suffered by the plaintiff from Rench or his acts in his lifetime — there was no cause of action to survive the decease of Bench. The fall of the building did not necessarily result from defective materials or defective construction; it was as safe as any other building up to the time of Bench’s decease; the injury was occasioned by, and resulted from, its use afterward; and the plaintiff had no present interest in the execution of the contract in Bench’s lifetime as to the weight which the building would be able to bear.

We are therefore of the opinion that, under the facts stated, no cause of action accrued in the lifetime of John Rench.

These views are sustained by the cases of Kearny v. The Boston & Worcester Railroad Company, 9 Cush. 108; Hollenback v. Berkshire Railroad Company, 9 Cush. 478; Roberts v. Read et al., 16 East, 216.

Judgment below affirmed.

Bartley, C. J., and Brinkerhoee, Scott, and Sutliee, JJ., concurred.  