75 Md. 604 | Md. | 1892
delivered the opinion of the Court.
The plaintiff, who is a non-resident, sued out a writ of attachment against the defendant, a foreign corporation, and laid it in the hands of the West Virginia Railroad Company as garnishee. What became of the
“ The Fairfax Forrest Mining and Manufacturing Co.
“ To Walter Roslyn Chambers, Dr.
“To salary agreed upon for services rendered by plaintiff to said company, at $250 per month, from March, 1888, to Sept. 30, 1890, inclusive, at $250 per month...................$1,150.00
“By cash.............................. $3 60
“ By acc’ts in bar................... 1,252 16— 1,255.16
$6,494. 24
The case was tried'before the Judge below, sitting as a jury, and judgment was rendered for the plaintiff for $6, Í31.84.
The first, second, third and fourth exceptions present substantially the same question. The plaintiff proved he was a native of England, and came to this country in August, 1881; — that he was an educated and practical mining engineer; — that he traveled on foot from Philadelphia to Cumberland, through the coal fields of Pennsylvania and Maryland, for the purpose of taking observations of the geological formations of coal and other minerals , in these States; — that he stopped at Wilsonia, in West Virginia, on the 21th of February, .1888, and while there met with Mr. L. Leveifing, the general manager of the defendant, a corporation chartered in that State, and the owner of a tract of land called “Fairfax Forrest ;” — that he had several inter
The plaintiff then proved that, at the request of Levering, he made a mining, and engineering, report of the company’s property, and the best means of developing it, and that he made out, also, a geological chart, maps, and drawings of its property, copies of which he offered in evidence, having given notice to the defendant to produce the originals, and to the admissibility of' this evidence the defendant objected.
After further testimony as to the services rendered by him, the plaintiff offered to prove that $250 was hut a reasonable compensation for such services, and to this evidence the defendant objected.
The plaintiff then offered to prove by James P. Gaffney, a civil and mining engineer of twenty years experience, and who had been for thirteen years in the employment of the George’s Greek Company, that he had exam
The defendant objects to the evidence offered under these several exceptions, on the ground that the bill of particulars shows that the plaintiff’s services were rendered under a special agreement between him and the defendant, and that evidence as to what would be a reasonable compensation for such services is not, therefore, admissible. Now, we agree that, where there is a special contract, the plaintiff cannot recover in general assumpsit, for services rendered under it, unless the contract has been fully executed, or unless the contract has been abandoned by mutual consent, or unless the fulfillment of it was prevented by some act of the defendant. But it is equally well settled that where there is a special contract for work and labor, not under seal, which has been fully performed on the part of the plaintiff, and nothing remains to be done but the payment of the money by the defendant, the liability of the defendant may be enforced in an action of assumpsit, and in such cases it is not necessary to set out or declare upon the special contract. It is the common practice, however, to join with the common counts, a special count on the contract. But the ground upon which the plaintiff recovers under the common counts, is not the defendant’s special contract or promise, but the implied legal liability of the defendant to pay for services rendered at his request.
Here the- contract was an executed contract, and the suit was brought to recover for services only, which the plaintiff had rendered under it. The declaration as fi led contained the common money courts, but at the request of the defendant, a paper purporting to be a bill of particulars was filed by the plaintiff. Neither the nature nor character of the services to be rendered were set
And this brings us to the question of jurisdiction, a question not made in the Court below, but made for the first time on this appeal. The plaintiff'is a non-resident, and the defendant is a foreign corporation, and the contract sued on is a foreign contract, and such being the case, the Court below, it is contended, had no jurisdiction of the subject-matter, even though the defendant
Judgment affirmed.