15 Md. 29 | Md. | 1860
delivered the opinion of this court.
This is an action of indebitatus assumpsit, for work and
After the arch had fallen, the appellee was notified that he bad not fulfilled his contract, and subsequently it was rebuilt
On the evidence, the plaintiff offered three prayers, which were granted, and the defendant four, the first three of which were granted, and the fourth rejected.
'There is no special count in the declaration on the contract; if any recovery be had it must be, because the work under the contract was fully performed and accepted by the partips 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 fulfilment of the coptrapt was prevented, There is no evidence in the record that the work contracted for was completed, nor of the abandonment of the contract, nor of any act of the defendant by which the plaintiff was interfered with in the prosecution of his work. This being so, the authorities are clear, that there can be no recovery in this action for the work done on the arch. See Ellicott vs. Peterson, 4 Md. Rep., 491. The Chesapeake & Ohio Canal Co. vs. Knapp, and others, 9 Peters, S. C. Rep., 541.
From what we have said it follows, that we are of opinion the court erred in granting the first and second prayers of thp plaintiff. It is dear, from all the evidence in the case, that the work fell down from one of two causes, either because of its inherent defectiveness, or because of the manner of “dumping” down, by the contractor Crey, of the earth against it, and whether it be the one or the other, the defendant is not liable. What was contracted for was an arch suitable to the purposes for which it was intended. If the plaintiff did not build such an one he did not do that which he had engaged to do. If his work was destroyed by the ficts of Crey, without any fault of the defendant, then his feinedy is against him, or against the city, if Crey was its
We reverse the judgment of the court below.
Judgment reversed.