any case. The Supreme Court of Colorado26 adopt the same doctrine, disapproving an instruction that killing is not justifiable if there is any other way of saving life or preventing great bodily harm, and approving an instruction that, "to justify homicide on the plea of self-defense, it is not necessary that the defendant should have had no other possible or probable means of escaping. A man who is rightfully going about his lawful business is not compelled to employ all the means in his power to avert the necessity of self-defense. Should you find from the evidence that the defendant had possession of the property, and yet had reason to believe that if he sought to maintain possession of the tunnel he would be attacked by another and be compelled in self-defense to kill his assailant, yet he was not required by law to give up possession or leave the premises to avoid attack." In State v. Cushing, 27 the killing was upon the "premises" of the defendant. It does not exactly appear upon what part of the premises, but it was outside the dwelling house, and the defendant, having been threatened and pursued by the deceased on the premises, had gone into the house and armed himself with a gun and came out again. The prisoner's counsel asked a charge that "the defendant was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground," etc. This was refused, and the refusal was held error; the court citing the Beard case, and the cases of Runyan, Erwin and Bohannon, supra, and declaring that the request "contained a correct statement of the law upon the subject." The Supreme Court of California28 have recently held that "where one, without fault, is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony or some great bodily injury upon him, and to afford grounds for reasonable belief that there is imminent danger of the accomplishment of this design, he may, acting under these fears alone, slay his assailant, and be justified by the appearances; and as where the attack is sudden and the danger imminent, he may increase his peril by retreat, so situated he may stand his ground, that becoming his 'wall,' Ritchey v. People, 23 Colo. 314.

27 14 Wash. 527, 53 Am. St. Rep. 883. 28 People v. Hecker, 109 Cal. 451, 30 L. R. A. 403, followed in People v. Lewis, 117 Cal. 186.

and slay his aggressor, even if it be proved that he might more easily have gained his safety by flight. People v. Herbert, 61 Cal. 544; People v. Gonzales, 71 Cal. 569; People v. Ye Park, 62 Cal. 204; People v. Robertson, 67 Cal. 650; Runyan v. State, 57 Ind. 84, 26 Am. Rep. 52; Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733. So, too, under such circumstances, he may pursue and slay his adversary. But the pursuit must not be in revenge, nor after the necessity for defense has ceased, but must be prosecuted in good faith to the sole end of winning his safety and securing his life. Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282; Young v. Com., 6 Bush, 312; State v. Collins, 32 Iowa, 36; Horrigan & T. Cases on Self-defense, p. 230." In Vermont, where the courts adhere to the old doctrine, it has recently been held that one unlawfully and murderously assailed is not obliged to retreat unless it is apparent to him that he has means of escape.29 In Carpenter v. State, 30 it is said: "According to the common law, it is the duty of every one, seeing any felony attempted by force to prevent it, if need be by extinguishment of the felon's existence. This is a public duty, and the discharge of it is regarded as promotive of justice. Any one who fails to discharge it is guilty of an indictable misdemeanor, called misprision of felony." "It follows, then, that any one, under the laws of this State, may repel force by force in defense of person, habitation or property, against any one who manifestly intends and endeavors by violence or surprise to commit a known felony upon either; and that he need not retreat in such cases, but may stand his ground, and, if need be, kill his adversary." So in North Carolina, it is held that "where the attack is made with murderous intent, the person attacked is under no obligation to fly; he may stand his ground and kill his adversary if need be.''31 In Mississippi, it is held that "a man assaulted, or about to be assaulted, with a deadly weapon, is not bound to wait until his antagonist gets upon equal, much less upon superior terms. He may rightfully use the advantage which his own innocence and his assailant's rashness have given him.” And so it was held that the defendant, arme

29 State v. Roberts, 63 Vt. 139. 30 62 Ark. 308.

32 State v. Dixon, 75 N. Car. 279.

with a gun, had a right to shoot his assailant advancing upon him with a knife, before he got within striking distance.32 A very late case in the federal supreme court33 goes, however, the full length in favor of the ancient rule, approving an instruction that the prisoner was bound to retreat as far as he could before slaying his assailant, and distinguishing the Beard case on the ground that "that was the case of an assault upon the defendant upon his own premises, and it was held that the obligation to retreat was no greater than it would have been if he had been assailed in his own house. Also distinguishing Alberty v. United States, 162 U. S. 499, and remarking: "The general duty to retreat instead of killing when attacked was not touched upon in those cases." It will appear from the foregoing review, that in the States of Arkansas, California, Washington, Colorado, Kansas, Texas, Wisconsin, Mississippi, Missouri, Kentucky, Michigan, North Carolina, Ohio and Indiana, the necessity for retreating is denied, the shield of the "castle" doctrine has been very much extended, and the disposition to leave it to the assailed person to judge of the possibility or safety of retreating is considerably enlarged. If the adjudged If the adjudged cases do not show, as Mr. Bishop some years ago avowed they showed, a distinction between an assault without deadly intent and a murderous attack, and do not restrict the duty of retreating to the former class, at least he has good reason for drawing that distinction; and it is well sustained by many recent decisions. It seems to the writer that the modern doctrine is the more reasonable.

As

the question of the safety of retreat is one that must be instantly decided by the person assailed, he should be left to judge of it, and if he chooses to stand his ground he is exercising the right of the citizen and should be absolved. There is no pretense that one assailed with bare fists may not resist with bare fists and is not bound to run away, and it seems a travesty on justice to say that a would-be murderer has larger privileges and must be afforded a greater opportunity to commit wrong.

All the cases admit that if the party assailed cannot safely retreat, he is not bound to retreat; but this question of the safety of retreat is nearly always a very

32 Allen v. United States, 164 U. S. 492. 33 Fortenberry v. State, 55 Miss. 403.

troublesome one, and there is a specie of absurdity in leaving it to the decision of a jury, who are calm and clear-headed, and in no sort of danger of their lives, and must decide upon hearsay, rather than to the man whose life is at stake and who must decide on the

spur of the moment. There is a great deal

of wise criticism of the conduct of battles and campaigns after the event, and in such cases the policy of a retreat or of standing one's ground may be determined rather better than by the general who is in ignorance of all the information that the historian has, and must assume a weighty and instant responsibility upon such insufficient information as he has, and upon the facts as they appear to him at the moment. A man whose life is in imminent danger at the hands of a felon, is not bound to try experiments out of tenderness toward his assailant. He is no more bound to run away from him than from a mad dog. It does not seem always to be borne sufficiently in mind that a man murderously assailed is in his own right at that moment, and has a logical and lawful right to stand on that right, and may not justly be called on to relinquish that right and run any risk of greater danger thereby. There is many a case in which it is just as clearly apparent that the man assailed is in his own right as if he were in his own house, and to require him to abandon it is as unjust as it would be to require him to retreat from his house on the chance that he might thus elude his pursuer. We have seen how modern adjudications have extended the shelter and protection of the house to his entire premises. The position of a man standing on an acre lot is no more sacred because the lot belongs to him than his position if standing on the premises of another man. It is not his property that serves as a legal shield to his life; it is his inalienable right to live free from murderous assaults, and an assault on the premises of a third person is no more excusable than an assault on his own land. The man has a right to live peaceably on anybody's land, and if another threatens his life anywhere, he may stay right there, and he is not obliged to seek some other place on the vague chance that he may reach it and be safe there. In the Beard case the decision was put on the ground that the defendant "was where he had a right to be," and, therefore, he "was entitled to stand

his ground." The same reasoning must be applicable in any case where the defendant is where he has a right to be. If there is a possibility of injustice in administering the law, let it be at the risk of the law breaker, and not at the risk of the peaceable citizen. Let men understand, when they murderously attack others, that their victims may safely defend themselves to extremity, acting on their own judgment, and are not bound to try to run away, and a certain degree of immunity of murder will be removed. Buffalo, N. Y.

IRVING BROWNE.

PARTY WALLS-UNCOMPLETED CONTRACTSRECOVERY ON QUANTUM MERUIT.

KEITH v. RIDGE.

Supreme Court of Missouri, July 6, 1898. Where a party wall was erected under a written agreement duly executed by adjoining landowners, where by defendant owner was to pay one-half its value when he should use it, but it was not com pleted in the mauner contemplated in the contract, in that a space was left in th wall for light and ventilation, and defendant subsequently used and enjoyed the wall as a party wall by filling up the space, he was liable on a quantum meruit.

BRACE, P. J.: The plaintiffs, Keith & Perry, are the owners of a lot in Kansas City fronting 100 feet on Walnut street, and running back 115 feet to an alley, and the defendant, Ridge, is the owner of a contiguous lot of the same frontage and depth. On the 7th of July, 1896, the parties entered into a written contract which provided as follows: (1) That whichever party shall first build adjoining said lines shall erect a party wall thereon, half on each side thereof, of such depth as such party shall see fit, and of sufficient strength and thickness to sustain a building of not less than five stories in height, of good material and workmanship, and in conformity with the building laws for the time being in force, and shall keep the same in repair until used by the owner of the other parcel; after which the same shall be kept in repair at the joint expense of the owners of said adjoining parcels of land for the time being. (2) That, whenever the owner for the time being of the other parcel uses said wall, he shall pay to the person at the time of sucb use owning the parcel first built upon one-half of the then value of such wall, including in the word 'wall' the stone and brick foundations and any other substructure, together with the coping. (3) That either party, his or their heirs or assigns, on either side, may build said wall higher or deeper, taking due care not to injure the other owner, and doing the work wholly from his or their side, unless the other side be vacant, and doing all that may be necessary, as by carrying up

flues and the like, to leave the other owner as near as may be in as good condition as before, and using good material and workmanship and conforming to existing building laws; and onehalf of the value of any such additions, when used, shall be paid for like the original structure." Soon after the agreement was made the plaintiffs, Keith & Perry, commenced the erection of a building on their lot, six stories high on Walnut street, and seven stories on the alley, the center of the south wall of which was, in pursuance of the agreement, located on the dividing line between their lot and that of the defendant, Ridge. The foundation of the wall was of stone, solid and continuous from Walnut street to the alley. The remainder was of brick, laid continuously thereon, except that from about 2 feet above the stone foundation, and about 50 feet from the front wall, the plaintiffs recessed their south wall on their own lot for a distance of 16 or 17 feet, to the top, thus leaving a space of that length of the wall unoccupied by their building, thereby forming a court therefor, on their own premises, for the purposes of light and ventilation. Their building was completed some time in the year 1888, and afterwards, in the year 1890, the defendant erected a building on his lot of the same depth, four stories high on Walnut street, and five stories high on the alley, using the wall thus constructed by the plaintiffs for the north wall of his building, making the same a continuous, solid, blank wall between the two buildings by filling up the space aforesaid left by the plaintiffs as aforesaid, which ever since has been used and enjoyed by both parties as a party wall for their buildings. After the defendant had thus erected his building, the plaintiffs demanded payment of one-half of the cost of the wall thus used by the defendant, and, payment having been refused this suit was instituted.

The petition is in two counts,-the first upon the contract; the second upon a quantum meruit The answer is a general denial, except as to the making of the contract, with allegations of specific violations thereof. The case was tried by the court without a jury. The finding on the first count was for the defendant. On the second count it was for the plaintiffs, on the theory that the defendant, having used the wall as a party wall, ought to pay one-half of the reasonable value of the wall actually used by him at the time it was so used, less one-half of the reasonable value of the part of said wall built by defendant, at the time it was built; and upon this theory plaintiffs' damages were assessed at the sum of $4.247.67, and judgment for that amount rendered in their favor, from which the defendant appeals.

The contention of the defendant is that a party wall is a solid blank wall, without windows or openings therein; that such was the wall contemplated in the contract; and that, by reason of the space aforesaid having been left above the foundation, unbuilt in, such wall was not a party

wall, within the meaning of the contract, although the contract provided that plaintiffs using it build the wall of such depth as they saw fit, and in all other respects the wall below and on each side of this space was a solid blank wall, without windows or openings therein, built in accordance with the requirements of the contract, and subjected, by the character of its construction, to no exclusive servitude for plaintiffs' benefit. To this extent the contention of the defendant was sustained by the circuit court, by its finding in his favor on the first count of the petition, and that ruling, not being before us for review on his appeal, need not be discussed. The contention, however, goes further, and it is insisted that, the work not having been completed in accordance with the terms of the contract as construed by the court, the court committed error in holding that the defendant was liable to the plaintiffs for anything on account thereof, 'although the same was accepted and used by the defendant for a party wall as contemplated in the contract. In support of this contention a number of cases are cited in which it has been, in effect, held that where a wall has been erected by the owner of a lot on the boundary line between his own and an adjoining lot, resting partly on each, the law imposes no obligation on the owner of the adjacent lot to contribute to the cost of its erection, in the absence of an agreement or promise to do so (Preiss v. Parker, 67 Ala. 500, and cases cited; List v. Hornbrook, 2 W. Va. 340; Sherred v. Cisco, 4 Sandf. 480; Orman v. Day, 5 Fla. 385), a general proposition that may be conceded for the purposes of this case. On this principle, it is contended that, although the wall in this instance was erected in pursuance of a written agreement duly executed, acknowledged, and recorded. and in conformity thereto, except in the respect mentioned, and of great value to the defendant for the very use intended in the agreement, and to which use it was subjected, and ever since has been enjoyed, by the defendant, yet, the wall not having been completed in the manner contemplated in the contract, the consent of the defendant thereby given was forfeited, the plaintiffs became trespassers ab initio, and can claim nothing on account thereof, notwithstanding their large expenditure therefor, under the contract, for the defendant's benefit. This contention wholly ignores that salutary and equitable principle, early introduced into the common law, and which has become firmly imbedded in our system of jurisprudence, that "if one party, without the fault of the other, fail to perform his side of the contract in such a manner as to sue on it, still, if the other party has derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. The law therefore generally implies a promise on his part to pay such a remuneration as the benefit conferred is reasonably worth, and, to recover that of quantum remuneration, an action of indebitatus assumpsit is maintainable." Yeats

v. Ballentine, 56 Mo. 530, and cases cited. "The established rule extracted and deduced from all the cases is that, where a party fails to perform his work according to the stipulations of his agreement, he cannot recover on the special contract; but if the services rendered by him, or the materials furnished, are valuable to the other party, and are accepted by such party, then he would be liable to pay the actual value of the work performed or the materials furnished, not exceeding the contract price, after deducting for any damages which had resulted from a breach of the agreement." Eyerman v. Association, 61 Mo. 489. The principle upon which this rule is based is so fair, just, and equitable that, while at first its application was limited to a certain class of contracts, it has now become in this State a rule of general application to all contracts, where it can be, applied without doing the defendant injustice. Moore v. Manufacturing Co., 113 Mo. 98, 20 S. W. Rep. 975; Halpin Mfg. Co. v. School Dist., 54 Mo. App. 371. So far as our decision go, the only exceptions, perhaps, thus far developed, are contracts for labor for a specified term. Earp v. Tyler, 73 Mo. 617, and cases cited. We fail to discover in the argument of counsel for the defendant, drawn from the nature of the interest acquired by the coterminous proprietors in a party wall built as this one was, any sound reason for not applying this rule to the case in hand, as was done by the circuit court in its judgment, which ought to be, and is therefore, affirmed. All concur.

NOTE.-Recent Decisions on the Rights and Liabilities of Adjoining Owners of Party Walls.-An owner of two lots built houses thereon, with a party wall between them, and then conveyed to different persons, without imposing obligation as to the wall. Plaintiff's predecessor in title of one of the lots built the wall higher, after strengthening its foundation. Held, that defendants, owners of the other lot, having built their house higher, and used the addition to the wall, were not, in the absence of an agreement, liable for such use. Allen v. Evans (Mass.), 37 N. E. Rep. 571. Under an agreement that when any portion of a party wall shall be used by the party who did not construct it, or by his heirs or assigns, he or they shall pay half the cost thereof to the party who did construct it, one is not liable for such payment because, at the time the party who did not construct the wall built a house on the adjoining lot, he was mortgagee of the lot. Nor is he liable because he afterwards became owner of the lot, through foreclosure; continuation of the building, after its erection, not being a use of the wall, within the agreement. Pfeiffer v. Matthews (Mass.), 37 N. E. Rep. 571. One who had covenanted with his neighbor to pay the cost of so much of the party wall as rested on his land, whenever he should use it, died, and, on partition of his real estate, a lot affected by the contract was assigned to one of his heirs, subject to such contract. Held, that the assignee took the lot cum onere, and the covenant might be enforced as a charge on the land. Pillsbury v. Morris, 54 Minn. 492, 56 N. W. Rep. 170. In an agreement for a party wall, one of the parties covenanted and agreed to pay to the other the cost of that portion thereof which

would rest on his land whenever he should use the same. Held a personal covenant, which the covenastee might assign separately from the land. Pillsbury v. Morris (Minn.), 54 Minn. 492, 56 N. W. Rep. 170. An agreement for a party wall provided that it should be used as such forever; that "whenever the said A, or his personal representatives, may desire to use said wall, he or they shall pay for the portion used;" and that the agreement should be construed as a covenant running with the land. Held, that the obligation to pay was personal, and did not bind a subsequent grantee of A, though the deed to such grantee recited that it was "subject to said agreement." Seball v. Mulholland (Super. N. Y.), 26 N. Y. S. 913. When a wooden warehouse is framed against a brick wall, built one-half on each lot, though no joists or other timbers are let into the wall, yet, if the ends of the sides and the roof are attached thereto in a permanent manner, and the wall is used as one side of the inclosure, there is a use in common which entitles the owner of the wall to recover from his neighbor for his use and half the value thereof. Deere, Wells & Co. v. Weir Shugart Co. (Iowa), 59 N. W. Rep. 255. A joint owner in a division wall may remove it, and erect a new one, if the work is done in a reasonable time, and the co-owner is reimbursed for necessary expense in protecting his property during the change. Putzell v. Drovers' & Mechanics' Nat. Bank (Md.) 28 Atl. Rep. 276. Where one, intending to construct a wall for his building within the line of his lot, by mistake, extends the foundation therefor slightly onto an adjoining lot, the wall does not thereby become a party wall. Pile v. Pedrick (Pa. Sup.), 167 Pa. St. 296, 26 W. N. C. 220, 13 Atl. Rep. 646. An agreement between plaintiff and defendant's testator that plaintiff should erect a party wall on the line between their lots, and that testator should have the right to use it at any time on paying plaintiff one-half of the cost, is personal to both parties, and plaintiff is entitled to recover the amount agreed to be paid, by testator, though the party wall was first used by defend. ant's grantee, and though plaintiff had also conveyed his lot to the same grantee. Frohman v. Dickinson (Super. N. Y.), 31 N. Y. S. 851. An agreement for a party wall to be built by one party, half the cost to be repaid to him by the other party whenever he should desire to use it, is personal, and such payment cannot be enforced by a grantee of the party who built the wall, though the agreement also provided that it should be construed as a covenant running with the land. Sebald v. Mulholland (Super. N. Y.), 31 N. Y. S. 863. Where one of the owners of a party wall strengthens it on his own premises, and extends it in height, and the other owner afterwards carries his building to the same height, but does not extend the timbers into such wall beyond his own land, the latter is not liable for the use of the additions made to the wall, or for the use of the land taken for those purposes, in the absence of any agreement, though the old wall, if carried up, would not conform to the law, and would not be sufficient. Walker v. Stetson, 162 Mass. 86, 38 N. E. Rep. 18. An adjoining owner of a party wall has a right to increase its height; and where he contracts with an independent contractor to have this done in a lawful, proper, and usual way, so that the work does not become, in itself, dangerous or extraordinary, and does not subject the existing wall to overweight, he is not liable for the damage incident to the falling of the wall through some accident. Negus v. Becker (N. Y. App.), 143 N. Y. 303, 38 N. W. Rep. 290. One who, in constructing

an addition to his building, using the south wall thereof as the north wall of the addition, conveyed the portion of the lot on which the addition stood, describing it as the "south 26 feet, more or less," of the lot, with "the undivided one-half of the wall on the north side of the above-described premises." Held, that the grantee took only an easement in the wall, and not any part of the land on which it stood. Dun. can v. Rodecker (Wis.), 62 N. W. Rep. 533. The east wall of plaintiff's building was the west wall of defendant's, and by it the joists of both buildings were supported. The wall from the base to the grade was 16 inches thick, from there to the ceiling 12 inches, and above the ceiling to the top of the fire wall 8 inches, the offset being on plaintiff's side. Held, that the wall must be considered as a party wall throughout its whole extent, upon which either party had the right to make additions. Tate v. Fratt (Cal.), 44 Pac. Rep. 1061. A division wall, built entirely on the land of one person, may, by agreement, actual or presumed, become a party wall. Dorsey v. Habersack (Md.), 35 Atl. Rep. 96. An agreement whereby defendant purchased the right "to place joists to the depth of four inches and to otherwise build into and against" the wall of plaintiff's house, "and to otherwise use the same as a party or division wall," includes the right to increase the height of said wall. Dorsey v. Habersack (Md.), 35 Atl. Rep. 96. Under a deed poll providing for a party wall, it was stipulated that it should be built to the height of one story of plaintiff's house, which was already built, and that either party could add to the wall in height, doing work from his own side if the other side was built upon. Defendant built a party wall to the height of one story, under the plaintiff's wall, and, wishing to go higher, built on top of such wall, but on his own side of the line. Held that, under the provision that either party might add to the wall in height, such addition need not be a party wall. Palmer v. Evangelical Baptist Benevolent & Missionary Soc. of Boston (Mass.), 43 N. E. Rep. 1028. An agreement for the construction of a wall in common by joint property owners, to the height of three stories on the land of one, does not justify the assumption that the other party may, of his own motion, and for his own sole benefit, extend said wall upward still another story, irrespective of a therefrom threatened easement ripening, or of injury likely to result to the property adjacent. Calmelet v. Sichl (Neb.), 67 N. W. Rep. 467. Where a party wall contract, making one-half the cost of the wall erected by one of the parties a lien on the lot of the other party, is filed for record in the office of the county clerk, the facts that it is recorded in the records of deeds, instead of in the records of mortgages, and that after being so recorded it was returned to the builder of the wall, do not affect the constructive notice to purchasers of the lot on which the lien exists. Knowles v. Ott (Tex. Civ. App.), 34 S. W. Rep. 295. Plaintiff, where he builds a wall, with the consent of defendant, on the dividing line between their lots, and the latter promises to pay half the cost when he shall use the wall, may recover on such promise. Swift v. Calnan (Iowa), 71 N. W. Rep. 233. A contract whereby an owner agrees to pay one half the cost of a party wall erected by the adjoining owner in case he builds so as to use the wall, in which event he is to become a half owner of it, is not without consideration. Arnold v. Chamber. lain (Tex. Civ. App.), 39 S. W. Rep. 201. A weakening in a party wall, incident to the joining of a building thereto in the customary and proper manner, does not violate a legal duty, nor a contract providing that