Pope v. King , 108 Md. 37 ( 1908 )

This is a suit, brought by the appellant against the appellees, in the Court of Common Pleas of Baltimore City in an action ofassumpsit to recover the contract price alleged to be due on a contract under seal, dated the 11th day of July, 1905, between the plaintiff, as contractor, and the defendants as a committee representing the Keistutis Beneficial Association of Baltimore City, a corporation duly incorporated under the laws of this State, for repairs and alterations to church property 506-510 W. Barre street, as per plans and specifications prepared by Henry J. Tinley, architect. The cause of action is an account stated between the parties, showing the contract price for the repairs and alterations to be $2,611, with a credit for cash paid on account of $1,790.90, leaving an alleged balance due by the defendants to the plaintiff, of $810.10.

The appellees pleaded the general issue pleas in assumpsit and an additional plea for defense on equitable grounds. The substance of the equitable plea is that an agreement under seal was made by and between the plaintiff and the defendants, as a committee of the Beneficial Association, for the alterations and repairs of the church building according to a copy of the agreement and specifications filed as a part of the plea. The contract price being $2,611, to be paid in three equal parts as the work progressed and upon a certificate of the architect. The plea averred that the plaintiff entered on said work and performed a part thereof. "And the work done by the plaintiff under the contract was done so improperly and imperfectly and unfaithfully, and was done with such delay that The Keistutis Beneficial Association of Baltimore City was and is entitled to recoup and deduct from the contract price for doing the work required by such contract more than the value of the extra work claimed to have been done on the building by the plaintiff herein and for which this suit is brought. And the plaintiff has received more compensation than he is entitled to receive for the work called for by the contract, and for the extra work for which this suit is brought, when the proper deductions are made for the delay, and for the unskillfull, unfaithful, improper and imperfect manner in which the work called for by the above referred to contract was done; and these defendants and the above referred to, The Keistutis Beneficial Association of Baltimore City, are willing that the claim for the above deductions may be set off against the plaintiff's claim for compensation for the extra work."

And for a further plea the defendants pleaded the insolvency of the plaintiff and their inability to enforce a judgment, if recovered against him.

In answer to these pleas, the plaintiff denied he was insolvent; that the work performed under the contract was not done improperly or unfaithfully, neither was there any delay in its performance. That the defendants are not entitled to recoup and deduct from the contract price for any work, or for any delay in the work, under the contract and that he has not received more compensation than he is entitled for the work called for by the contract.

The contract, which is the basis of the controversy, is dated 11th day of June, 1905, and is as follows:

This agreement, made this eleventh day of June, nineteen hundred and five, between John W. Pope, of the first part, and A.J. King, George Kimkewicz, John Chester and Vincent Zirleiziris, committee of the second part.

Whereas the said John W. Pope, of the first part, agrees to make such alterations to property 506-510 W. Barre street, as per plans and specifications prepared by Henry J. Tinley, architect (with the exception of side gallerys and their supports) for the sum of two thousand, six hundred and eleven dollars ($2,611.00), said money to be paid in three equal parts as the work progresses and upon a certificate from the architect.

The said J.W. Pope also agrees to give bond to the amount of one thousand, five hundred dollars ($1,500.00) for the completion of the work, and to secure the owners against loss of any kind. The work to be completed in sixty days from time of contract being signed.

Whereas the said A.J. King, Geo. Kimkewicz, John Chester and Vincent Zirleiziris, committee of the second part, agree to pay to the said J.W. Pope, of the first part, the said sum of two thousand, six hundred and eleven dollars ($2,611.00) for such alterations to property as specified, payments to be made in three equal parts as the work progresses and on a certificate from the architect.

Jno. W. Pope, (Seal) A.J. King, (Seal) George Kimkewicz, (Seal) John Chester, (Seal) W. Zirleiziris. (Seal) Witness: Henry J. Tinley.

The case upon trial resulted in a verdict and judgment for the defendant, upon an instruction by the Court, at the close of the plaintiff's case, to the effect, there being no legally sufficient evidence that the plaintiff had obtained the approval of the architect, the verdict under the pleadings must be for the defendant.

The questions in the case are brought here for review upon an exception by the plaintiff to the rulings of the Court in granting the defendants' prayer, and in the refusal of the Court to permit certain questions to be asked the witness Zalegiris, as set out in the first and second bills of exceptions.

It is obvious, we think, under the facts and pleadings of this case that as the suit is for work required to be done under the original contract under seal, to wit, the alterations and repairs of the church property, as per plans and specifications by the architect, the recovery would have to be, if at all, in a form of action, on the sealed instrument and in accordance with the terms and stipulations of the contract. In the case at bar, the sealed contract provides in express terms that the payments for the repairs are to be made in three equal parts as the work progresses and on a certificate from the architect. The suit here is brought to recover for the work done under the original contract and specifications and not for extra work done subsequent to the contract. In O'Brien v. Fowler, 67 Md. 565, it is said, to entitle the plaintiff to claim under the contract, he must claim in conformity to the terms thereof and not otherwise. The very object of the stipulation in the contracts was to exclude such claim for extra work except upon the condition prescribed. This case is entirely unlike those, where a party sues upon a sealed contract, which has been abandoned or the contract has been waived or rescinded, by mutual consent, and the plaintiff seeks to recover in an action of assumpit for the value of the work done. While in such cases he could not recover on the original contract under seal, he would not be without remedy, in assumpsit on a quantum meruit. Franklin Fire Ins.Co. v. Hnmill, 5 Md. 170; Bratt v. Crook, 5 G. J. 239;Herzog v. Sawyer, 61 Md. 345.

In this case, however, there is no evidence to support the theory of the plaintiff's case. On the contrary, there was not only no certificate given by the architect but the evidence on the part of the plaintiff shows that the architect declined to give the certificate because in his judgment the work was not done, according to the terms of the contract.

All the cases bearing on working contracts, where it is provided that the work shall be performed subject to the approval of an architect employed by the builder, hold that the right of the contractor to recover the compensation shall be subject to such approval.

In Lynn v. B. O.R.R. Co., 60 Md. 415, JUDGE MILLER, in delivering the opinion of the Court, said: "By this contract, which is perfectly lawful, the parties expressly agreed to submit the question whether the ice to be supplied was ``good, clear and solid' to the judgment of this third party and his judgment, no matter how erroneous or mistaken it may be or how unreasonable it may appear to others is conclusive between the parties unless it be tainted with fraud or bad faith. To substitute for it the opinions and judgments of other persons whether judge, jury or witnesses, would be to annul the contract and make another in its place." Abbott v. Gatch, 13 Md. 315; Wilson v. York Md.R.R., 11 G. J. 39; Merritt v. Pen. Construction Co., 91 Md. 453; Clarke v. Watson, 18 C.B.N.S. 278.

In Denmead v. Coburn, 15 Md. 29, it is distinctly held, where there is a special contract the plaintiff cannot recover in an action of indebitatus assumpsit for work and labor, unless the work under the contract was fully performed and accepted by the defendant, or the contract was abandoned by mutual consent, or the fulfillment of it prevented by some act of the defendant.Ellicott v. Peterson, 4 Md. 496; Gill v. Vogeler,52 Md. 667.

Like the case of Denmead v. Coburn, supra, there is no special count in the declaration on the contract in this case, and if any recovery be had it must be because the work under the contract was fully performed and accepted by the parties for whom it was done, or that the contract was abandoned by the consent of the parties to it, or that by some act of the party sought to be charged, the fulfillment of the contract was prevented. There is no evidence in the record to establish either of these theories, and under all the authorities there could be no recovery in this form of action under the facts of the case. The Court therefore committed no error in granting the appellees' prayer, that the verdict under the pleadings must be for the defendants, because there was no legally sufficient evidence that the plaintiff had obtained the approval of the architect.

There was no error in the rulings of the Court in refusing to permit the witness Zalegiris to answer the questions propounded and set out in the first and second exceptions. These are the questions. Q. Is the society making use of that building now? Q. Mr. Zalegiris, do you remember what was the first time the society made use of the building on Barre street after Mr. Pope was employed to make the repairs?

It is settled that the use of a building under circumstances which negative the intention of the owner to accept the work, under a contract, does not constitute an acceptance of the work.

In Gillis v. Cobe, 177 Mass. 584, it is held, that one who uses a building constructed on his land by a contractor who has failed to obtain an architect's certificate of approval required by his contract does not thereby accept the work or relieve the contractor from his obligation to furnish such certificate.

In Presbyterian Church v. Hoopes, c., 66 Md. 598, it is said, the party for whom the work is contracted to be done, is under no obligation to accept anything else in place of that contracted for and if he does not waive his right the other party to the contract cannot recover against him without performing all the stipulations on his part. Hanely v. Walker, 79 Mich. 607;Haynes v. Second Baptist Church, 88 Mo. 285.

In the recent case of Filston Farm Co. v. Henderson,106 Md. 335, JUDGE PEARCE carefully reviews the cases in this Court, in the Supreme Court and the English Courts, bearing upon contracts like the one here under review, and says: "But this contract provides, as we have seen, that payments are to be made only upon certificates of the architect and that all payments shall be due only when certificates for the same are issued, and the Maryland cases are uniform in holding that such a provision makes the production of the certificate a condition precedent to the liability of the owner to pay for material and labor unless its refusal is due to fraud or bad faith."

In this case there is no allegation in the nar that the architect wrongfully, fraudulently or improperly neglected or refused to give the certificate as required by the contract. Nor is there a scintilla of proof tending to show that his action in withholding the certificate, was "tainted with fraud or bad faith."

Upon a consideration of the whole evidence we are of the opinion that there was no intentional waiver of the production of the architect's certificate, the condition precedent to the liability of the owner in this case, and that the doctrine of substantial performance relied upon by the appellant has no application.

In this view of the case, and for the reasons stated herein, we are of the opinion that the Court below acted without error, in its rulings both upon the prayer, and the admissibility of the evidence, and its judgment will be affirmed.

Judgment affirmed, with costs.