Trustees of Seventh Baptist Church v. Andrew & Thomas

A motion has been filed and submitted on behalf of the appellant for a re-argument of this case. We have carefully examined the motion and the appellant's brief in support of it, and we find no reason to disturb the conclusion reached by us as heretofore announced in an opinion filed in the case.

The reason for the motion is stated to be: First, that the principal point upon which the Court decided the case is one that was not passed upon by the Court below, was not discussed in the appellant's brief or oral argument, and is a point upon which the Court fell into error by overlooking a provision of the contract. Second, that the change from lime mortar plaster to ivory hard wall plaster was a change of material and not of work and is not covered by section 5 of the contract, which provides that no alteration should be made in the work shown or described by the drawings and specifications except upon the written order of the owner. Third, that the owner authorized this change in writing, and Fourth, the Court was in error in holding that the testimony does not show that the contractors were responsible for the defective condition of the plastering.

As to the first objection, we need only say, that it will be seen, upon an examination of the opinion itself, that the decision of the case was not based upon any single ground, but after stating a number of reasons for our conclusion, we said, upon the whole record, the case was devoid of legally sufficient evidence to permit the plaintiff to recover under the pleadings and evidence and the case was properly withdrawn from the jury, by the granting of the defendant's first prayer.

The conclusion reached by us upon this prayer, for the reasons we gave, disposed of the case, and made it necessary for us to consider the other prayers. The defendant's second prayer was a demurrer to the evidence, and properly instructed the jury there was no legally sufficient evidence, under the pleadings, to show an indebtedness by the defendant Bonding Company to the plaintiff under its bond filed in the case, and directed a verdict for the defendant.

As a matter of fact, however, the point or ground here objected to was discussed both in the oral argument and upon the appellee's brief, under point 3, page 14 of the brief.

The second and third objections will be considered together. By reference to the 5th paragraph of the contract, it will be seen, that the contract provides, in terms that no alteration should be made in the work, shown or described by the drawings and specifications except upon the written order of the owner.

Now while it is conceded, that as to the plastering work, ivory hard wall plaster had been substituted for lime and mortar plaster, without the written order of the owner it is contended that this alteration or substitution was a change of material and not of work, and is not covered by section 5 of the contract.

The word work, obviously, has a very broad and general meaning but is defined as applied to contracts to be the product of labor and material combined which terminates in the execution of the contract, and applies to all the work done under the contract. This meaning of the word, it will be seen, runs through the whole contract and specifications in this case and it is in this sense that the word is here used. This meaning is supported by certain expressions in the contract itself for example, "Take down thework which the architect shall condemn," "The contractor shall cover and protect the work from damage by the weather," "The contractor shall maintain insurance on the work." And in the specifications will be found similar expressions, to wit, "The contractor shall have some competent person on the work," "The contractor must protect his work," and "Work shown on the drawings." It is, therefore, clear, we think, that the fifth paragraph of the contract refers to the plastering work, and a change of materials was a change of this work.

The paragraph from the specifications under the head of changes relied upon by the appellant refer to extra work, and is the usual provision in building contracts. There was no written order of the owner as required by the contract to make the alteration as agreed upon. The approval of the change by the architect of the building could not bind the surety the appellee here. The architect, Glidden, was in no sense the agent of the church for this purpose and could not act as agent for the church except under the contract and this clearly required a written order of the owner. This question is fully discussed in the opinion and need not be further considered here.

The fourth objection is also covered by the opinion. By paragraph 4 of the contract it is provided, that the decision of the architect on all matters referred to him, shall be final and conclusive. In this case, the architect gave his approval of the plastering, and his decision is shown by the opinion filed in the case to be conclusive between the parties. Filston Farm Co. v.Henderson Co., 106 Md. 335; Lynn v. B. O.R.R. Co.,60 Md. 415; Pope v. King, 108 Md. 44; 16 L.R.A. (U.S.) 489; Smith Sons v. Jewell, 104 Md. 270; Potomac Steamboat Co. v.Harlan, 66 Md. 42.

We have carefully reviewed the case and discover no reason for granting another argument, as we think the case is fully covered by the opinion, and for the reasons stated the motion for a re-argument will be overruled.

Motion overruled, with costs.