7 Md. 297 | Md. | 1854
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
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
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 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.