Baltimore & Ohio Rail Road v. Resley , 7 Md. 297 ( 1854 )

Le Grand, C. J.,

delivered the opinion of this court.

After the introduction of the testimony of the witness Dayton, and that of other witnesses to the same points, the defendants gave in evidence written articles of agreement between the plaintiffs and the defendants, from which it appeared that it had been agreed upon between the parties, that a particular mode was fixed in which the character and value of the work to be done was to be ascertained. The clauses in the contract applicable to this branch of the case are in these words. After speaking of payments the contract proceeds thus: “The above payments shall be made in the following manner, that is to say, during the progress of the work and until it is completed, there shall be a monthly estimate made by the aforesaid engineer, of the quantity, character and value of the work done during the month, or since the last monthly estimate, four-fifths of which value shall be paid to the said parties of the first part, at such place as the chief engineer may appoint, and when the said work is completed and so accepted by the said chief engineer, there shall be a final estimate made by the engineer of the quantity, character and value of said work, agreeably to the terms of this agreement, when the balance appearing to be due to the said parties of the first part shall be paid to them, upon giving a release under seal to the said company from all claims or demands whatsoever growing in any manner out of this agreement. And it is expressly understood, that the monthly and final estimates of said engineer as to the quantity, character ami value of the work done during the month, or since the last monthly estimate, and at the completion of the work shall be conclusive between the parties to this contract, unless the chief engineer may deem it proper at any time to revise and: alter, in such manner as he may see fit, the monthly or final estimates of the said engineer, in which event the estimate of the said chief engineer shall be substituted to all intents and purposes in place of the estimate of the said engineer, it being how'ever wholly optional with the said chief engineer to exercise such powmr of revision or not.” The defendant, after giving evidence of the work, estimates, payments, &c., proved by a witness that the contract had been modified. It appears from the evidence of the witness, that the plaintiffs representing that the work on the section was costing them too much, and that they could not go on with it at their contract prices, the witness, who' was one of the engineers in the employ of the defendant, told one of the plaintiffs to go on with the work until he could have a conversation with the chief engineer about it, and that between the time of the conversation and the time when the chief engineer should decide what was to be done, the expenses of the plaintiffs would be paid and that they should lose nothing. Witness further says: “After the interview with the chief engineer he told Mr. Resley, (being authorized to do so by the chief engineer,} what he said, which was, go on with the work and you shall be. paid your estimates according to your expenses until the work is completed, then it shall be finally measured up and the quantities returned. If there shall appear to be any thing due you over what you have already received for the work done before this arrangement, it shall be paid to you. The understanding was that he was not to lose what remained of his twenty per cent, in the hands of the company, on the work done prior to that time, and that he was to be protected from further loss on the work. Save in the particulars now enumerated, the contract was to stand as it was. His expenses were to be the monthly estimates.”

The contract thus modified was this: after the whole work was completed a final estimate of the work done prior to the new arrangement was to be made,, and paid for, according to the stipulations of the written contract.- The work to be done after the new arrangement, was to be paid for according to its actual cost to the plaintiffs, and this cost was to be ascertained by the monthly account of expenses-.

The defendant offered ten prayers, all of which were rejected. They are numbered in the record from number two- to number eleven, both inclusive.-

To each of these prayers was- urged several objections. We do not deem- it important that each of them should be considered, for if the prayers be defective in any particular the' court did right in rejecting them.

The second and- third prayers were defective in assuming the execution of the contract given in evidence of date July 6th, 1850. It was for the jury to find its existence and proper execution.

We see no defect in the fourth prayer. It requires the jury to find all the necessary facts to warrant the legal conclusion which it deduces from them. The objection urged in argument to this prayer was, that the proof did not show the value of the work was properly ascertained; the failure being supposed to exist in the fact that although the quantity and kind of work were given, the calculation was not made and carried into columns in dollars and cents. This we do not consider an evasion of the requisitions of the contract, but a substantial compliance with them. We discover also no error in the fifth prayer, and accordingly dissent from the circuit court in regard to the fourth and fifth prayers.

The sixth prayer asserts that the measure of damages for work done subsequently to the 20th March 1851, is the rates fixed by the original contract. This was clearly wrong, for, according to the new arrangement, the work to be done after it was made was to be paid for according to its actual cost. It was the object of the new understanding to effect an alteration in the mode of compensation; in other words, to substitute for the contract prices the actual expenses to which the plaintiff should be subjected after the 20th March 1851.

The seventh and eighth prayers proceed in part on the idea, that for the work done an estimate was to be made by measurement, whereas by the contract, as modified, no matter what was the measurement, the plaintiffs were to be indemnified their expenses for all work done after the new arrangement had been entered into. These prayers cover all the work and are not confined to that done prior to the new or modified contract.

The ninth prayer denies the right of the plaintiffs to recover in this form of action, unless the jury should find from the evidence that the work specified in the contract was performed and completed by them. This was error, because the parties were released by the consent of the defendant. The decision in Rodemer vs. Hazlehurst & Co., 9 Gill, 294, is a sufficient answer to this prayer.

The tenth prayer is also erroneous, because it denies the right to recover, unless the jury should find “that the plaintiffs first tendered to the said defendant a release in writing under seal, releasing the said defendant from all claim or demands growing in any manner out of said agreement.” This prayer relates to the contract of date 16th November 1850, which was fully executed. It provides that the balance that may be due on it to the plaintiffs, “shall be paid to them upon their giving a release under a seal” to the company. We do not consider the tender of the release a condition precedent, but as one which was to be performed simultaneously with the payment of the money. This view was fully and clearly held in the case of Oliver vs. Palmer & Hamilton, decided at June term 1846, but not reported. In that case the order, which was the subject of interpretation, was in these words:—-“Messrs. R. and J. Oliver, You will please pay to Palmer and Hamilton, out of any funds you may have belonging, to me, the sum of ten thousand dollars, after deducting all claims and demands you may have against me on any account whatever. On the payment of the above mentioned sum, $10,000, Palmer and Hamilton will deliver to you my two-notes in favor of D’Arcy and Didier, for $4263.89, and $4288.19, amount, $8552.08, and relinquish all claims against me.—Lemuel Taylor.” In regard to-the time when the right of action accrued the-court said: “Readiness and willingness to deliver the notes and execute a release, was all that was-necessary to entitle the appellees (P. and H.) to sue at any time after funds came to the hands of R. and J. Oliver to pay. The previous execution of a release not necessary, nor an actual tender of notes and release.”

The eleventh prayer is defective in this: it submits a question of law to the jury, namely, the interpretation of thecontract.

We have avoided saying anything in regard to the other exceptions contained in the record, because the views we have expressed render it unnecessary we should do so.

Judgment reversed and procedendo awarded.