52 Md. 663 | Md. | 1879
delivered the opinion of the Court.
The undisputed facts of this case are simply these: In January, 1875, the appellants made a contract with the authorities of Baltimore City for the improvement of Jones’ Falls, the work to be done to the satisfaction of the City Commissioner, in strict accordance with the plans and specifications on file in his office, and to be completed by the first day of July following.
In March of the same year, the appellee contracted in writing with the appellants to do a certain portion of the work for five thousand dollars, the whole work to be done in accordance with the plans and specifications adopted by tbe authorities of Baltimore City, and to the satisfaction of the City Commissioner. It was further agreed between the parties, that the City Commissioner should make monthly estimates during the progress of the work; and upon the estimates thus made, the appellants were to pay Yogler eighty per cent., the remaining twenty per cent, to be paid on the completion of the whole work.
Under this contract Yogler began the work, and prosecuted it from time to time until the 30th of June, when he notified the appellants in writing, that unless payment, was made by the 2nd of July for the work already done, he would abandon the work. Eb monthly estimates were made by the City Commissioner, during the progress of the work, because in his judgment, the work had not been performed in accordance with the plans and specifications, and the appellants therefore refused to make any payments. Thereupon the appellee, Yogler, removed the machinery used by him in prosecuting the work, and sought employment with other persons. Afterwards, namely on the 9th of July, the appellants made a contract with Flaherty & Welsh for the completion of the work thus begun by the appellee; and upon being notified of this contract, the latter offered to resume the work, but this offer was refused by the appellants.
The appellee now seeks to recover under a quantum ■meruit for the work done hy him.
Whatever difficulty there may he in reconciling the many decisions in regard to the right, of action hy one under a special contract, part of which remains unperformed, they all agree in holding, that where there is an executory contract, and the plaintiff has performed part of it, and then wilfully and without legal excuse refuses to perform the rest of it, he cannot recover either in general or special assumpsit. Denmead vs. Coburn, 15 Md., 44; Faxon vs. Mansfield & Holbrook, 2 Mass., 147; Stark vs. Parker, 2 Pickering, 267. See also cases cited in 2 Smith’s Leading Cases, in notes to Cutter vs. Powell.
Here then is an executory contract for the performance of certain work, in consideration of which the appellants were to pay five thousand dollars; and the question resolves itself into this, has the appellee after part-performance of the contract, wilfully and without just excuse refused to perform the rest of it? And to this there can he hut one answer.
Under the contract the work was to he done in accordance with certain plans and specifications, and to the satisfaction of the City Oommissioner; and during the progress ■of the work the appellants were to pay to the appellee eighty per cent, upon monthly estimates to be made by the City Oommissioner. These monthly estimates were hy the very terms of the contract, a condition precedent to the right of the appellee to demand payment during the progress of the work. It is not pretended that the Oommissioner acted in had faith in refusing to make the estimates, or that there was any collusion between him
It follows from what we have said, that the several instructions granted by the Court were erroneous, and being of opinion that the plaintiff was not entitled to recover under the evidence, we shall reverse the judgment without remanding the case for a new trial.
Judgment reversed,
without remanding
the ease for anew trial.
