Hampson v. Lewis ex rel. Marshall, Bingham & Bradford , 1878 Md. LEXIS 33 ( 1878 )

Stewart, J.,

delivered the opinion of the Court.

Under the contract in this case, which was merely by parol, the parties not having signed any written agreement, the complainant engaged to plaster the five houses of the respondent for some fifteen hundred dollars.

All the necessary materials, such as laths, lime and hair, &c., to be provided, and had ready as needed, by the respondent—the complainant, according to the tenor and effect of the contract, to go on with all reasonable dispatch to complete the worlf. The complainant having other work, and respondent other engagements, it seems to have been left very much to the mutual convenience of the parties to proceed with the work as they were respectively inclined.

At all events this rmrst be its substantial interpretation, as the verbal stipulations are not sufficiently definite to make the contract more binding, as to the time of furnishing the materials or progress of the work after they were on hand.

Certainly the proof of the contract is not clear as to when the work was to be done—the effect of the complainant’s obligation, would require him to do it in a reasonable time. It appears it was to be paid for as it progressed, according to the convenience of the respondent, and entirely when completed.

With this loose understanding, the complainant commenced the work, and after completing three of the houses, and some partial work on the others, and receiving some six hundred and fifty dollars, abandoned the work because of alleged failure on the part of the respondent to furnish the necessary materials. 'I1 his is affirmed on the part of the complainant and denied by the respondent, .and the testimony is conflicting. The onus of the proof is on the complainant, who files the bill to establish his debt.

Under these circumstances after giving notice to the complainant, the respondent employed other mechanics to to finish the plastering, which it seems cost some three hundred and twenty-eight dollars, besides the charge of one hundred dollars made by the respondent for his personal supervision.

Leaving out of the calculation any claim of the respondent by way of recoupment, for damages sustained by him, by reason of the non-performance of his contract by the complainant., he will have paid for the work nine hundred and seventy-eight dollars, and this deducted from the fifteen hundred dollars, the contract price, as made out, would leave $522 due the complainant.

(Decided 26th June, 1878.)

As to the respondent’s claim for damages by the delay, it was competent for him at any time, after giving notice to the complainant to proceed with the work, and having the materials ready, if there was failure on the part of the complainant, to engage other parties to finish his work, and hold the complainant if he was delinquent, for the consequent loss sustained through his non-performance.

According to the testimony, we think the said five hundred and twenty-two dollars is the full extent of the complainant’s claim, and the decree of the Circuit Court must be modified accordingly, and the case will be remanded for that purpose.

Decree reversed, and cause remanded.