delivered the opinion of the court.
That appellee was injured by the falling of a portion .of the smoke-stack referred to in the statement, is conceded. Appellant contends, however, that he is not the person who is liable to appellee for the damages arising from such injury.
By an agreement between appellant and the University Club, appellant leased to said club a part of the land upon which said smoke-stack was erected. The following provisions, with others, are contained in said agreement, viz.:
“ Second: In consideration of the demise and lease aforesaid, the party of the second part (The University Club)' covenants and agrees to and with the party of the first part (Boyce) that it will, within the space of three (3) months next after the date of this agreement, place and erect, or cause to be placed and erected, partly upon the land hereby demised, a wrought iron stack, of at least one hundred and fifty (150) horse-power capacity.
“The party of the second part further covenants and agrees to and with the party of the first part'that he may at any time after such stack shall have been erected, and during the term of his demise, insert into said stack and use for his own purposes, until the end of the term hereby demised, a flue of one hundred and fifty (150) horse-power capacity.
“ The party of the second party further covenants and agrees that the party of the first part shall at all times have the benefit of so much of the draft of said stack as will enable him fully to use and enjoy his one hundred and fifty (150) horse-power flue aforesaid.
*580 “ It is understood by the parties hereto that all repairs and renewals of said stack are to be made by the National Electric Construction Company during the term of a ten-year lease which the party of the second part has made of its basement to said company. But it is covenanted and agreed by the parties hereto that after the lease to said National Electric Construction Company shall have expired, and before it shall have expired, if such construction company shall fail or go out of business, all repairs and renewals shall be made at the joint expense of the parties hereto; said parties shall pay, respectively, portions of the expense of any such repairs or renewals, proportioned to the number of horse-power capacity in said stack actually used by them respectively, at the time such repairs or renewals become necessary.
“ The party of the first part (Boyce) covenants and agrees to carry up said stack at his own expense to the height of any building which he may hereafter erect upon his said premises.”
By its certain agreement of even daté with said agreement between appellant and said club, said Electric company agreed with appellant, the consideration therefor moving from appellant, “ to extend said stack upward at its own expense so that the same shall at all times so long as said company shall remain a tenant of said club, be of at least equal height with any building hereafter erected upon the premises of said Boyce, adjoining said stack, provided, however, that if any such building hereafter erected upon the premises of said Boyce shall exceed one hundred and sixty (160) feet in height, the cost of so much of said stack as shall exceed one hundred and sixty (160) feet in height shall be borne and paid by said Boyce.”
Appellant testifies that he did not build said smoke-stack or have anything to do with building it, or furnish material therefor or pay for it, and that he did not know who erected it. This may be entirely correct in the connection and in the sense in which appellant used and intended it, but it is not true in a legal sense under the contracts from which the above quotations are taken. The University Club caused the stack to be erected to the height of its building, by the Electric company. Appellant contracted and agreed *581with the University Club to carry up said stack at Ms own expense to the height of any building which he might thereafter erect upon his said premises. He also made a contract with the Electric company whereby that company agreed to extend said stack to the height of any building thereafter erected upon the premises of appellant adjoining said stack, at its own expense.
After said agreements were made appellant erected a building upon his said premises which was about forty feet higher than the Club building. While the appellant’s building was still in the hands of his contractor the Electric company extended said stack up to the height of the Boyce building. Upon the record in this case it must be assumed that the Electric company so extended said stack under its contract with appellant. The appellant used and enjoyed the benefit of said stack with his building, to the extent of a certain portion or per cent of the capacity thereof, all the time after erecting his building, and was so using and enjoying the same at the time appellee was injured by the falling thereof. Appellant is, in law, liable to outside parties for any damages arising from a faulty or defective construction of such extension of said stack. As between appellant and appellee it is immaterial whether the Electric company is or is not also liable, or whether the Electric company is liable over to appellant for any sum it may be compelled to pay on account of the defective construction or fastening of said stack.
From the testimony it seems that a part of the stack fell because that part comprising the extension above the Club building was not properly secured or fastened. For the injury thereby caused to appellee the appellant is liable. Said stack having been erected under and in pursuance of a contract with appellant, his liability in no way depends upon a notice to Mm of the insecurity of said stack, or upon a demand to abate the nuisance, as urged by his counsel.
Whether the declaration is good and sufficient as against a demurrer is now immaterial. There is no defect in it which is not cured by verdict.
*582It is also contended that the damages are excessive. It may be that the damages awarded by the jury are more than we should have been inclined to give, but the jury . and the trial judge saw appellee and heard his testimony, and saw the other witnesses and heard their testimony. The verdict and judgment are not so excessive or so manifestly against the weight of evidence that this court would be justified in reversing the judgment.
The judgment of the Superior Court is affirmed.