Broadwell v. City of Kansas. Parker, 1 T. R. 287: Liverpool Waterworks Co. v. Atkinson, 6 East, 507; Tradesmen's Bk. v. Woodward, Anthon N. P. (2d ed.) 300. Here the sureties undertook for the fidelity of their principal only while he was book-keeper; but if while book-keeper, the duties of any other office, trust, or employment relating to the business of the bank were assigned to him, their obligation was also to extend to the discharge of those duties. While bookkeeper he might temporarily act as teller, or discharge the duties of any other officer during his temporary illness or absence, or he might discharge any other special duty assigned to him, and while he was thus engaged the bank was to have the protection of the bond. There are no words binding the sureties in case of the appointment of their principal to any other office They might have been willing to be bound for him while he was book-keeper, or temporarily assigned to the discharge of other duties, but yet not willing to be bound if he should be appointed teller or cashier, and as such, placed in the possession or control of all the funds of the bank. This is a case where the general words subsequently used must be controlled and limited by the recital. A surety is never to be implicated beyond his specific engagement, and his liability is always strictissimi juris, and must not be extended by construction. His contract must be construed by the same rules which are used in the construction of other contracts. The extent of his obligation must be determined from the language used, read in the light of the circumstances surrounding the transaction. But when the intention of the parties has thus been ascertained, then the courts carefully guard the rights of the surety and protect him against a liability not strictly within the precise terms of his contract. Ludlow v. Simond, 2 Cai. Cas. 1; 2 Am. Dec. 291; Crist v. Burlingame, 62 Barb. 351; McCluskey v. Cromwell, 11 N. Y. 593; Gates v. McKee, 13 id. 232; Rochester City Bank v. Elwood, 21 id. 88; Pybus v. Gibb, 38 Eng. L. & Eq. 57." BROADWELL V. CITY OF KANSAS. (75 Mo. 213.) Municipal corporation — injury to lands by grading streets. A city is liable for an injury caused to land abutting upon a street by the rol. ling of earth thereupon in the grading of the street.* A CTION against the City of Kansas and John Halpin to recover damages for crushing and destroying plaintiffs' house. Halpin was a contractor with the city for grading the sidewalks in Fifth street, the plaintiffs owned premises abutting on that street. The grade of the street, as established by the city ordinance, was about on a level with the top of plaintiffs' house. In making necesssary filling large quantities of earth rolled down upon plaintiffs' premises and against the wall of their house, crushing and throwing down the house. The plaintiff had judgment below. *To same effect, Hendershott v. City of Ottumwa (46 Iowa, 658), 26 Am. Rep. 182; contra, Fellowes v. City of New Haven (44 Conn. 240), 26 Am. Rep. 447, and note, 457. Broadwell v. City of Kansas. Wash Adams and Karnes & Ess, for appellants. Frank Titus, for respondent. SHERWOOD, C. J. It may be conceded at the outset that the city would not have been answerable in this action if it were bottomed on the mere fact that consequential injuries have resulted to plaintiffs because of the grading of the street by the contractor Halpin. The authorities on this point, in this State, as well as elsewhere, are numerous, and many of these cited by counsel. The approved doctrine on this subject is thus succinctly stated by a writer of recognized authority. "The courts, by numerous decisions in most of the States, have settled the law that municipal corporations, acting under authority conferred by the legislature, to make and repair, or to grade, level and improve streets, if they keep within the limits of the street and do not trespass upon or invade private property, and exercise reasonable care and skill in the performance of the work resolved upon, are not answerable to the adjoining owner whose lands are not actually taken, trespassed upon or invaded, for consequential damages to his premises, unless there is a provision in the charter of the corporation, or in some statute creating the liability." 2 Dill. Mun. Corp., § 990. But in this case the action is not for consequential damages, but for a direct and positive injury. The contractor Halpin, who in this behalf was the servant of the city, did not "keep within the limits of the street." On the contrary, he trespassed upon and invaded private property. And for this the city is clearly answerable, and to it in such circumstances the doctrine of "respondeat superior" applies. If the contractor, while confining himself to the area and boundaries of the street, had performed the work assigned him with reasonable care and skill, and in consequence thereof some indirect, some consequential injury had resulted therefrom, no action would lie, the plaintiffs would be without remedy. And to their case, according to the authorities, would be applicable that self contradictory maxim of "damnum absque injuria." This case however involves no such circumstances as will admit of invoking that maxim; the injury, as before stated, being the immediate result of the wrongful act. And we think that the liability of the city and of the contractor may well be placed on either or both of these grounds: 1st, that the injury resuited Broadwell v. City of Kansas. from the work not being done with reasonable care and skill; 2d, that such injury resulted from the commission of a tort. What is reasonable care and skill is of course, largely dependent on the surroundings of each particular case, and is therefore a relative term. But we cannot regard that as such care and skill, which unnecessarily, not to say recklessly and wantonly, dumps on the premises of an adjoining proprietor large quantities of earth, covering those premises many feet in depth, crushing in the walls of and destroying a dwelling house, situated some twenty feet from the street. If upon making the fill required by the contract, it became apparent that the work could not be completed without direct injury, such as before mentioned, to an adjoining proprietor, unless a wall were built to restrain the earth within the limits of the street, then such wall should have been built, and reasonable care and skill, as applicable in this connection, required that wall's construction. The fact that statutory authority existed for doing the work did not carry with it a power to directly injure or destroy the property of an adjoining proprietor. If it were necessary to make a fill in order to grade a street, and the embankment were required to be raised so high that it would become necessary, as is sometimes the case, to make cross embankments, or supports of either earth or stone in order to keep the principal embankment in place, no one would doubt that before the land of adjoining proprietors could be occupied by such cross-embankments, either the consent of such proprietors would have to be obtained, or else proper legal proceedings taken to condemn the required land. And there can be no essential difference in principle between occupying one's land with earth deposited there as the incident of making the principal embankment, and doing the same thing by making a cross-embankment. If the owner of a private lot should decide to fill it with earth, the fact that he had the legal and undoubted right thus to fill his own lot up to a certain level, would not give him the right in so doing to dump earth on his neighbor's lot, either directly or incidentally, and we do not perceive that the city has any greater rights than would a co-terminous proprietor, in similar circumstances. In a word, the maxim "sic utere tuo ut alienum non ladas" should govern the actions of municipal corporations as well as those of individuals. Moreover section 16 of article 1 of the Constitution of 1865, pro vided that: Priest v Watson. prohibition may "Any injury to "No private property ought to be taken or applied to public use, without just compensation." Here the city and its servant took the property of plaintiffs within the meaning of that section. The taking of property within that be either total or absolute, or a taking pro tanto. the property of an individual which deprives the owner of the ordinary use of it, is equivalent to a taking and entitles him to compensation." "So a partial destruction or diminution of value of property by an act of the government which directly and not merely incidentally affects it, is to that extent an appropriation.” Cooley Const. Lim. (4th ed.) 680, et seq.; Pumpelly v. Green Bay Co., 13 Wall. 166; Hooker v. New Haven & North Hampton Co., 14 Conn. 146; Arimond v. Green Bay Co., 31 Wis. 316; Ashley v. Port Huron, 35 Mich. 296; s. c., 24 Am. Rep. 552; Eaton v. Railroad Co., 51 N. H. 504; s. c., 12 Am. Rep. 147. [Omitting a minor consideration.] All concur. Motion for rehearing overruled. Judgment affirmed. PRIEST V. WATSON. (75 Mo. 310.) Negotiable instrument — discharge of accommodation indorser by release of levy against maker. One who had recovered judgment against the maker of a note and levied upon sufficient property of his to pay it, released the levy. Held, that this discharged the liability of an accommodation indorser. A CTION on a promissory note. The opinion states the case. The plaintiff had judgment below. H. A. & A. C. Clover, for appellant. Charles A. Davis and A. R. Taylor, for respondent. NORTON, J. This is an action instituted in the Circuit Court of the city of St. Louis, by plaintiff, as indorsee, against defendant, as indorser of a negotiable promissory note for $3,000. VOL. XLII-52 Priest v. Watson. The defendant in his answer substantially alleged that he indorsed the note in question on the day of the date, for the accommodation of R. J. Watson, the maker, who discounted the same in the St. Louis National Bank and received the proceeds; that the bank, as holder, took all necessary steps to charge defendant, as indorser, and sued defendant and the maker upon the note; that the action was dismissed as to defendant and judgment obtained against the maker; that on this judgment execution was issued; that defendant thereupon informed the bank that he was merely an accommodation indorser upon the note, that the maker had property subject to execution, and requested the bank to levy upon the property of the maker and thus satisfy the judgment; the bank accordingly caused a levy to be made upon a tract of land in St. Louis county, belonging to R. J. Watson and worth $5,000; also, upon some cord-wood belonging to R. J. Watson, worth $2,000; also, upon some shares of stock belonging to the same defendant, worth $2,000. The answer further says, that before the maturity of the note the plaintiff in this action, Priest, who is a brother-in-law of R. J. Watson, well knowing that defendant John A. Watson was a mere accommodation indorser on the note in question, for the accommodation of R. J. Watson, who is a brother of the defendant, together with R. J. Watson, conceived the fraudulent design of imposing upon defendant the payment of the note; that R. J. Watson, though solvent, was somewhat embarrassed in his affairs, and to relieve him, Priest, on the 15th of February, 1876, purchased the judgment from the bank, paying the full amount and costs, and taking an assignment to him, Priest; that afterward, without the knowledge of this defendant, Priest directed the sheriff to release the levies upon the personalty above mentioned, which had been advertised for sale, and also to indefinitely extend the time of sale of real estate levied upon as aforesaid, and said property was in consequence discharged and released from levy of the execution, and no sale was had; that afterward, on the 18th of December, 1876, Priest placed on record a deed duly executed and acknowledged by R. J. Watson and wife, whereby for the consideration, real or pretended, of $5,000, they purported to convey the real estate above mentioned to Priest; that this deed was dated and acknowledged the 20th day of November, 1875; but was not delivered until the day it was recorded, or if delivered before, was made in fraud of the creditors of R. J. Watson and of defendant, as his surety, and |