North Bros. & Strauss v. Mallory , 94 Md. 305 ( 1902 )

The declaration in this case contains seven counts; six of them are common counts in assumpsit; the seventh sets out substantially that the plaintiff and defendants agreed in writing that the former should furnish, deliver and erect in the basement of the defendants' building, a steam plant, for which the defendants were to pay the plaintiff $2,000; that the said steam plant was to be, one 9x12 ball automatic engine (Erie) 45 horse power, second hand but guaranteed to be in first-class condition, and one horizontal tubular boiler 60 inches diameter 13 ft. long, actual 70-horse power; the same to be equipped set up and connected as detailed and specified in the written agreement; that subsequently the said parties further agreed that in lieu of the boiler originally contracted for in the written agreement, the plaintiff should furnish a new boiler, for the sum of $300 additional, "making the total amount of the contract price of said work and material $2,300, which" the defendants agreed to pay, and promised to permit and suffer the plaintiff and his workmen and employes to enter upon their premises and complete the work, and that the plaintiff "did commence and in part perform and furnished a portion of said materials, c., and expended large sums of money in and about the purchasing of said materials and for work done," c.; yet the defendants would not permit him to proceed with or complete the work, c., but wrongfully discharged him and prevented him from completing the work, whereby he lost the profits which otherwise would have accrued to him from the completion of the work, and "the value and price of the work and material actually done and provided." The defendants plead the general issue pleas, and after trial and judgment for the plaintiff have appealed.

There are but two bills of exception. The first raises a question of evidence; the second brings up for review the action of the lower Court upon the prayers that were severally offered by the parties.

In the first exception, the question presented arose as follows. The plaintiff offered the written contract, which provided among other things that the boiler should be an "horizontal boiler 60 inches diameter, 13 ft. long, actual 70-horse power second hand but in good condition;" also evidence tending to show that he had delivered on the premises such a boiler. He then offered a paper purporting on its face to be a certificate of the State Inspector to the effect that the said boiler was in good condition and capable of sustaining a pressure of 100 lbs. to the square inch. To the admission of this paper the defendants objected, "unless the plaintiff proposed to follow it up by identifying the boiler furnished by the plaintiff with the boiler mentioned in the certificates." The plaintiff then offered proof tending to prove that "J.C. Smith, the State Inspector," gave the certificate to the plaintiff and that "he saw, examined and tested the boiler again in the basement of the defendants' factory, and that it was the boiler covered by the certificate." The Court thereupon permitted the paper to go to the jury. After much testimony had been taken, and all the evidence on both sides was in, the defendants moved the Court to exclude the certificate from the jury for the reasons, 1st., that there was no identification of the boiler inspected with that furnished by the plaintiff, and 2nd., "because there was no proof of the alleged signature of the State Inspector." The Court overruled the motion, and the defendants excepted. There had been no additional testimony offered between the time of its admission by the Court and that of the entering the motion. The motion therefore was nothing else than a request of the Court to review and reverse its previous ruling. That ruling the defendants had permitted to pass without reserving an exception, as they might have done. If they desired to raise any question as to signature of the Inspector, it was open to them at the time the paper was offered to do so. They should have done so at that time, and it was too late to make the objection after the Court had ruled upon its admission, unless something had intervened that gave them notice of objections of which prior thereto they had had no information. In Dent v. Hancock, 5 Gill, 127, this Court said, it was the duty of counsel, if aware of the objections to the admissibility of evidence, to object at the time it is offered, or if unapprised of such objections at the time the evidence had gone to the jury, he must raise his objections within a reasonable time thereafter. "To allow a greater latitude, as to the time of raising such objections to testimony, might be productive of much inconvenience and injustice." Hagan v. Hendry, 18 Md. 188; Davis and wife v.Patton, 19 Md. 128; Marfield v. Davidson, 8 G. J. 213. We find no error in this ruling of the Court.

The plaintiff offered five prayers, all of which were granted; the defendants, nineteen, of which eight were granted, eight rejected, and two rejected as offered but granted with modifications. The original written agreement was proved, as set forth in the narr. The plaintiff commenced the work and delivered on the premises a boiler and proceeded to connect it as provided in the agreement. On the 11th of January, 1900, the defendants wrote to the plaintiff, that "the boiler you have placed in our factory does not come up to the terms of your contract," and in the same letter proceeded to state many other things in which, they claimed, the plaintiff had not complied with the terms of his contract. There was also evidence tending to show that prior to the date of that letter there had been complaints of the boiler, and that the plaintiff had offered to substitute therefor a new boiler, and install that in the factory at an increased cost to the defendants of three hundred dollars On the tenth day of January, 1900, the defendants wrote, "we agree to this on the following conditions," viz. (among others) that the original contract of November 29th, should be still in force except "so far as we now agree to change it;" no rights to be surrendered under that paper; the new boiler to be made "according to specifications furnished by the Maryland Casualty Company," copy to be furnished by the defendants; and the "work of removing the boiler now in, not to be begun until the weather will permit us to run our business without heat in the building; and must be finished within a reasonable time, say thirty days from time you start to put boiler in." This qualified acceptance of the plaintiff's offer was in turn accepted by him, as will appear from his letter of February 10th. There was also evidence tending to prove that if the plaintiff had been permitted to continue his work, he would have completed it with "due diligence and dispatch," and would have been able to make the alterations and corrections which were incidental to the unfinished state of the work; and that he had offered to make such alterations and corrections.

The defendants offered evidence tending to prove that the contract, modified as stated, was not completed by the plaintiff according to its terms; that its completion "was not waived by the defendants nor prevented by them or by their fault," and that they had stopped the work because the "plaintiff knowingly failed to comply with the material terms of his contract." There was also evidence to show that the engine furnished did not come up to the requirements of the contract, in that it did not develop the requisite horse power. The plaintiff in his letter of the 13th of January admitted this, and proposed to install another in its place. He writes, "as the ball engine does not come up to the horse power, which I supposed it would develop, when my contract was made with you, * * * I propose to install" in place of it, another (which he describes) "which will give you under 300 revolutions 49 I.H.P. this being 4 indicated H.P. above what I originally claimed for the ball engine." It appears that negotiations had already been begun and were afterwards continued, having for their object the installation of the new engine; but they do not seem to have culminated in an agreement. On February 10th the defendants write: "You wrote us a letter some time ago stating you would put us in a New Erie ball engine 9 1/2 x 10. This point also should be settled." "As to accepting any part of the work, and paying a consideration for the same, we cannot do this. If we give the contract to another, it must be in its entirety. We know of but two alternatives — one for you to go ahead and finish your work according to the new specifications — the other to rescind your contract and remove your material. Unless you select between the two in the next few days, we willconcede that you have chosen the latter and will go ahead and give the contract to another firm." The plaintiff in his reply to this letter, on the same day, after stating his view of the matters between them, and that the defendants had agreed through Mr. James E. North and Mr. Palmer that "they would only accept" the new engine, subject to the acceptance of the Maryland Casualty Company, says that had he "been allowed to proceed with his contract the new Ames boiler and the new ball engine would have been finished complete and turned over to you long ago" On 13th February the defendants write him that they cannot accept either one of the offers of February 10th; that the breaches of his contract are numerous; that it was then "nearly three months since the work was begun, and as we cannot see that you are now any nearer a conclusion than when you started, we are compelled to cease further negotiations with you."

There was also evidence tending to show that had the plaintiff fully performed the contract as modified, and had furnished the new boiler and engine, he would have lost $300 or $400.

Upon this state of the proof, the Court by the first prayer of the plaintiff instructed the jury that if they found the original written contract, and the modification of the same with respect to the boiler, and that about the 17th January, 1900, the plaintiff offered and agreed to furnish a new engine that would develop "the horse power contracted for and asked to be permitted to telephone an order for the same and otherwise offered and agreed to finish and complete the said plant in all other respects in conformity with the contract of 29th November" and that the defendants prevented him from so doing, then the plaintiff was entitled to recover, for "such sum of money" as was "laid out and expended" by him, less the value of the boiler and engine, which had been returned to the plaintiff under the agreement of counsel, as appeared by the evidence in the case. Now the contract required that the plaintiff should furnish an engine with an actual horse power of forty-five and to set up the same and connect it, in the manner particularly described. This was a material part of the contract. The defendants had the right to require that it be fully performed, and were not bound to accept the work or any part of it, until such an engine had been set up. If, therefore, the plaintiff installed in the defendants' factory an engine that could not develop the requisite horse power, having failed to perform his contract, he can bring no action to recover either in general or special assumpsit, unless he have some legal excuse for his failure to do so. Gill v. Vogeler, 52 Md. 666; notes to Cutter v. Powell, 2 Smith's Leading cases, 37; Denmead v. Coburn, 15 Md. 29.

If, on the other hand, the plaintiff, after part performance in the manner required by the contract, was without fault on his part, but was prevented by the act of the defendants from completing his part, he might either treat the contract as still in existence and sue upon it for a breach. Dugan v. Anderson,36 Md. 583; or he might regard the contract as rescinded and recover in general assumpsit for what he had actually done.Bull v. Schuberth, 2 Md. 57; Merritt v. Penin. Con. Co.,91 Md. 453.

In the former case, the damages "would include compensation for the labor done and materials furnished and such further sum in damages as might, upon legal principles, be assessed for the breach of the contract." Black v. Woodrow, 39 Md. 217;United States v. Behan, 110 U.S. 338.

In the latter, where he elects to rescind the contract, and sues in general assumpsit, he cannot recover damages for a breach of the contract, either for outlay or for loss of profits, but merely for the value of his services actually performed as upon a quantum meruit. If, however, the plaintiff did not put in an engine that conformed to the contract, and was then prevented from proceeding further, he would still have the right to recover in general assumpsit for whatever part of the work that has been accepted by the defendants. Watchman Bratt v.Crook, 5 G. J. 263; Pres. Church v. Hoopes, 66 Md. 603;Waggaman v. Nutt, 88 Md. 266; Rodemer v. Hazlehurst, 9 Gill, 294; Dermott v. Jones, 23 Howard, 220; notes toCutter v. Powell, 2 Smith's Lead. Cases, 1; Denmead v.Coburn, 15 Md. 29.

This prayer is based on the theory that the plaintiff has been without fault, and lays down a rule of damages applicable only to such a case. It fails, however, to require that the jury shall find that the plaintiff did furnish an engine that came up to the requirements of the contract. In lieu of that they are directed that the plaintiff may recover if they find that he offered to furnish another engine that would develop the horse power contracted for, upon the theory that the plaintiff, having furnished an inadequate engine, had the right to be permitted by the defendants to enter upon the premises for the purpose of removing the old engine and replacing it with the new one, and that he had this right under and by virtue of the provisions of the contract.

That question may be considered not only in connection with this prayer, but also with the plaintiff's fourth prayer, which announces substantially the same proposition. Neither of these prayers require the jury to find that the defendants ever agreed that the substitution of a new engine should be made by the plaintiff. There was evidence that the defendants had refused to make any new agreement about the matter. The hypothesis of the prayers therefore demands the assumption that it was quite immaterial whether the defendants ever so agreed or not, and that it was sufficient if they found that the plaintiff made the proposal. At the time, however, such proposal was made, there had been placed in the defendants' factory an engine that was conceded to be totally inadequate to measure up to the requirements of the contract. The contract fixed no time for the completion of the work, and in such case it is implied that it shall be within a reasonable time. Coates Glenn v. Sangston, 5 Md. 130.

The original contract was entered into on the 29th of November, and more than two months had elapsed when the defendants were confronted with a demand that the plaintiff shall be permitted to tear out the engine and replace it with another. Was such a demand reasonable at that time? Whether it would so delay the completion of the work as to make the time when the work could be completed so unreasonable as to authorize a recission of the contract, was matter of law for the Court and not matter of fact for the jury. Ragan v. Gaither, 11 G. J. 490.

Neither of these prayers annex any limitations upon the effect of the plaintiff's offer, except the first which leaves the question of reasonableness to the jury. But aside from these considerations there is nothing in the contract nor (unless the jury find there was an agreement with respect to the substitution) anything in the letters or conversations between the parties that could authorize the plaintiff to enter upon the premises of the defendants for the purpose of tearing out anything that had been put there. The contract contemplated the installation of a steam plant, and when that was done the plaintiff's right of entry upon the premises to do work would terminate. Nor is there anything in the contract that contemplates that the plaintiff should have the right to experiment, so that if he failed at first he might make another effort. If there was a failure again would he have a right to try again, and yet again, if there was another failure? And if it were unreasonable to hold that he might have an indefinite number of opportunities, upon what principle should he be entitled to more than one? The evidence shows that the defendants' building was used as a factory, and that the steam plant was necessary for the conduct of the business. The defendants in a letter to the plaintiff, on February 10, say, "We have two floors that have been idle since you started your work, and have not been able to formulate our plans," c. Under these circumstances it is idle to suppose that when the contract was made it was not contemplated that the plaintiff should furnish the plant within a reasonable time, without the privilege of making a second attempt in case of a failure. These prayers for the reasons we have stated were both defective, and should have been rejected.

The second and third and fifth prayers of the plaintiff were properly granted. If as stated in the second the jury found that the parties agreed with respect to the substitution of the new boiler, then the original contract was waived to the extent of the modification but under the evidence no further. Howard v.W. S.R.R. Co., 1 Gill, 311.

The defendants' first and third prayers were also properly rejected. The third presented a matter of law for the finding of the jury, in that they were required to find that the failure of the plaintiff was "not caused by a legal excuse."

The fifth prayer directs the jury that if they find the work was not completed "in accordance with the terms of the contract as modified," that "under the pleadings" the plaintiff could not recover, unless they find for the plaintiff under the seventh count. This prayer ignored all the evidence as to defendants' action in prevention of the work. And if there was part performance in accordance with the terms of the contract, but the plaintiff was prevented by the act or consent of the defendants from performing the residue, he may recover for the work actually done in general assumpsit. Rodemer v. Hazlehurst, 9 Gill, 288.

The seventh, eighth and ninth prayers are open to the same objection. The eighth and ninth prayers are also objectionable because they make the condition of the second-hand boiler the test of the plaintiff's right to recover, whereas there was evidence from which the jury might find that that feature of the contract had been modified, so that the plaintiff had the right to furnish a new boiler, in substitution of the second-hand one that had been theretofore furnished.

By the eleventh and twelfth prayers the jury were told that the plaintiff would not be entitled to recover if the work done was not "first-class in every respect." It is well settled however that "if there is only a partial failure of performance by one party to a contract for which there may be a compensation in damages the contract is not put an end to." Warfield v.Booth, 33 Md. 71.

For the same reason, the modifications of the Court to the defendants' sixth, sixteenth and nineteenth prayers were proper. The fourteenth prayer was improper because of the fact that it ignored all the evidence of the prevention of the work. If without fault of the plaintiff the defendants arbitrarily stopped the work, the plaintiff could regard such conduct on their part as a "violation of the contract in omnibus" and might "at once treat it as a breach of the entire contract and bring his action accordingly." Dugan v. Anderson, 36 Md. 583. The plaintiff's first and fourth prayers having been improperly granted, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed with costs and new trial awarded.

(Decided January 16th, 1902.)