I. It is conceded that the plaintiff erected a lawful partition wall on the line of the lots of land owned by the respective parties, and that the value of the one half thereof, which is used in common by the parties, is two hundred and ten' dollars. If these
The defendant, by his answer, claimed that before the wall in dispute was erected he made an oral agreement with the plaintiff by which the plaintiff was to build the wall, and that “defendant might occupy so much of said wall as was necessary to be used by his building without charge to said defendant,” and that he was not to pay for any part of said wall. Evidence tending to establish this claim was introduced over the objection of the plaintiff, and it is claimed that this was error.
Section 2030 of the Code is as follows: “This chapter shall not prevent adjoining proprietors from entering into special agreement about walls on. the lines between them; but no evidence of such agreement shall be competent unless it be in writing signed by the parties thereto, or their lawfully authorized agents, and whenever such proprietor is a minor, the guardian of his estate shall have full authority to act in all matters
II. The petition in the case was founded upon two counts. The first count was based upon an award of arbitrators,- and the second count was an ordinary claim to recover a judgment for one half the value of the wall. The action, so far as it was based on the award, was not urged by the plaintiff. The trial was had without regard to the award. As we have seen, the court permitted the defendant to give evidence of an alleged parol agreement between the parties as to the matter in controversy. This evidence consisted of the testimony of the defendant. To rebut this testimony, the plaintiff offered'm evidence the written agreement to arbitrate-, which was signed by the parties. An objection to this evidence was sustained. It should have been overruled, and the writing should have been admitted in evidence. We need not set it out here. It shows that at the time it was executed there had been no agreement, parol or otherwise, between the parties, but that the matter of the partition wall was in dispute, and it was signed by the parties after the time the defendant claimed that an oral agreement was made touching the matter. If the defendant’s testimony was admissible at all, it was surely competent for the plaintiff to rebut it.
The judgment of the district court is beyebsed.