Baltimore Cemetery Co. v. Coburn , 7 Md. 202 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

The parties entered into a written agreement for the erection, by the appellee for the appellant, of a gateway, according to a specified plan. The contract contained this clause: “It is hereby mutually agreed that should any alteration be contemplated from the present design, it may be done, provided the parties beforehand agree upon the price, and endorse it upon the contract, and unless such agreement be also entered, it is to be taken to be an agreement to make the alteration without any change in price of the original contract.” Some changes were made in the progress of the work, about which there is no controversy. The appellee sues to recover compensation for two windows, placed in the gateway by direction of the architect, which it is said became necessary to its symmetry and beauty, in consequence of the two chimneys having been placed in a position different from that contemplated by the original plan.

It is said, on the part of the appellee, that these windows were additional work, not part of the original design, and, therefore, not such an alteration as was necessary to be endorsed on the contract. In this we do not agree. Why should the change of place of the chimneys be within the agreement, and not the change as to the windows ? It makes no difference whether the number of the windows was increased or not. In one sense these two new windows would be additional work, but might they not require an alteration in the plan ? If the original design had been completed according to the contract, and other work done after the contract had been discharged, it would present a different question.

This is not like the cases cited, in which the parties charged acquiesced in, or accepted the work when finished. It does not appear that the company ever acquiesced in this change. Indeed if the order had been given by it for the work, would it not have been within the clause we have given from the contract?' It is impossible to conceive the use for inserting any such provision, if it is to have no effect in a case like the present. Owners are very much in the power of builders and architects. Changes, apparently unimportant, are often made, the first knowledge of which comes to the owner in the' shape of an additional charge for extra,work. It may have been to prevent this, and the controversy that often arises-from verbal arrangements suppletory to written agreements, that the parties had this cautious provision inserted. It was a clause for the benefit of both, especially for that of the owner. The plaintiff must have known that he could not make the alteration and charge for it, unless the assent of the parties was endorsed on the contract. The stipulation pro-' vides, not only that the price shall be agreed upon beforehand, and endorsed, but also, that if this is not'done; it shall be taken as an agreement to make the alteration without any change in the price from the original contract. If the plaintiff, relying on the assurance of the architect, chose to perforin this work without placing it within the protection afforded to the parties by an endorsement on the contract, he must bear the consequences.

There is nothing to show the assent of the defendants, or their acquiescence in the alteration; on the contrary, the first we hear of them in reference to it, is their refusal to pay the extra charge. Even if they had had knowledge tending to show their assent, it might have been inferred by them, that, as no agreement had been made and endorsed, the contractor was changing the places of the windows, only in conformity with the alteration of the design as to the chimneys, and that no additional charge would be made.

The case of Miller vs. McCaffrey, 9 Barr., 245, furnishes some very wholesome suggestions on this subject. There the written contract provided how alterations were to be made, and stipulated that “no extras should be allowed under any pretext whatever.” The contractor claimed compensation for extra work which he had done without the previous agreement of the other parties, but, of which they had knowledge during its progress, and made no objection. The court held, that in the absence of an express promise to pay they were not liable. It must be so, else there is no sense in making a contract. When one of the parties reposes on his written agreement, and is willing to abide by its requirements, shall the other' make alterations to suit his own taste, or that of the superintendent, and compel the owner to pay an extra price for what, probably, if consulted, he never would have allowed. There is no evidence of a promise to pay for this work. On the contrary, the witness states that he did not believe the company knew of the erection of the windows, nor of his (witness’) agreement to- pay for them, until the gateway was finished-and the bill for the windows rendered, when the company objected to pay for them, on the ground that they knew nothing of the alteration, and that it had never been mentioned- to them, nor endorsed upon the contract. There is no foundation in law, nor warrant in reason, for saying, that in a ease like the present, where a party stipulates that he will not pay for alterations in the work unless they are agreed upon-, and reduced to writing beforehand, he shall nevertheless be held responsible upon a quantum meruit. It would be to-deny to him the benefit of written evidence, and subject him to the uncertainties of parol proof, depending on the fluctuating opinions of other persons as to the character and the value of the work, and to bind him against his will.

We do not say that a stipulation of this kind may not be waived in such manner as to' render the party liable for extra work; but in the present case we do not discover any thing on the part of the appellants, or of any person authorized to act for them, to exclude them from the benefit of this clause in the contract. The witness was appointed merely to superintend the work according to the plan, with such alteratio’ns as the parties might have agreed upon. As such superintendent, he had no power to bind the company by promises in their name, whatever he may have thought of the extent of his authority. Indeed the inference from his testimony is, that the plaintiff looked to him and not to the company, for he no where says, that he promised that the defendants would pay for the work, but that he would see the plaintiff paid what the windows were worth, which he thought was $150.

From the view we have taken of the obligations of the parties under the contract, we are of opinion that the court erred in granting the plaintiff’s first 'prayer,- and that the judgment must be reversed. As a procedendo will not issue, it is unnecessary to express any opinion on the court’s refusal to grant the defendants’ third prayer.

Judgment reversed, and no procedendo.