127 A. 383 | Md. | 1925
A building agreement between the firm of Mason Fox, as contractors, and W.C. Hipple, as owner, providing for the construction of an addition to the owner's public garage in Baltimore, included the following stipulations:
"The owner agrees to pay the contractor in current funds for the performance of the contract as follows: 6% on the total cost of the operation; the contractor agrees to guarantee the cost of the building, exclusive of the plumbing, heating, electric wiring and fixtures, not to exceed the sum of twenty-eight thousand, one hundred and sixty ($28,160.00) dollars, for the work as shown on drawings and as per the contractor's estimates of January 8, 1921, and September 27, 1921, and any saving of any money under the guaranteed amount ($28,160.00) shall revert back to the owner, subject to any and all additions and deductions that may be agreed upon between the owner and contractor in writing, and to make payments thereon as follows:
When foundation walls are in place ............. $5,600.00
When brick walls are in place to 2nd
floor level .................................. 7,400.00
When roof is on and flashed .................... 7,000.00
When building is completed, a sum not
to exceed .................................... 8,160.00
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"All of the above payments are for 90% of the work in place. The final payment shall be made within 30 days after the acceptance of the building by the owner."
When the work under the contract had so far progressed that the roof of the new building was on and flashed, and when the third of the specified payments was due, a dispute arose as to the amount which the contractors were then entitled to receive. The controversy was mainly the result of a difference of opinion in regard to the interpretation of the provision that the payments mentioned in the contract "are for 90 per cent. of the work in place." It was the contention of the contractors that they were entitled to be paid the amounts designated in the agreement as the work advanced to the respective stages therein described, while the owner's theory was that only ninety per cent. of the stated amounts was payable at the periods specified, and that the balance was to be reserved until the building was completed and accepted. The sum paid on account of the third installment was $6,134.92. The contractors claimed the right to receive at that time the full sum of $7,000 as the amount of the third payment contemplated by the agreement, and also the sum of $585.12 as a balance due them on the first two installments. Because of the inability of the parties to adjust their differences the work was discontinued. There was testimony on behalf of the contractors that the owner told them to "get off the job." This was denied by the owner. The building was completed by other contractors at a cost of approximately $4,000. The payments to Mason Fox aggregated $17,999.80. In this suit for the balance claimed to be due them for the work performed and the materials furnished in the erection of the building, they were awarded $4,600.34 by the verdict of a jury. The amount of the verdict, added to the payments made to Mason Fox and the cost of completing the garage, makes a total less than the maximum cost of $28,160, limited in the contract from which we have quoted. *98 The defendant's appeal from the judgment entered on the verdict presents for review rulings of the trial court which are the subject of twenty-four exceptions.
The principal questions in the case are raised by groups of exceptions to rulings on evidence and prayers which were concerned with the construction of the contract under consideration in regard to the demandable amounts of the successive installments, and the right of the contractors to be paid for additional work required by orders of the building inspector of Baltimore and by instructions said to have been given by the defendant orally.
It was definitely stipulated in the contract that the builders should receive payments of specific sums of money at three of the construction periods indicated. The amounts payable when the foundation walls were in place, when the walls were finished to the second floor level, and when the roof was on and flashed, were stated with precision. It was only as to the final payment that the contract was indefinite. That was not to exceed $8,160, as otherwise it would extend the total cost beyond the stated maximum. In providing that the stipulated payments were "for 90% of the work in place," the contract simply estimated the excess value of the work to be completed at the times when the several amounts became payable. There was proof that when the third payment accrued it was in fact not more than ninety per cent. of the cost value of the work then finished, for which the contractors had not been compensated. The theory that only ninety per cent. of the amount stated in the contract could be claimed at the stated periods is not consistent with the plainly expressed agreement for the payment of designated sums as the work advanced. The effect of that provision is not neutralized by the subsequent recital that the required payments were for ninety per cent. of the work then accomplished. It was not to ninety per cent. of the payments specified, but to that percentage of the work that the contract referred. The court below was in accord with the view that the contractors were entitled to the full amount of the installment which they *99 sought to collect at the time of the discontinuance of their work on the building, and the rulings with respect to that phase of the case were free of error.
The decision of the question as to whether the contractors can recover for additional work performed under instructions of the owner and the building inspector should not disregard the fact that it was a "cost plus" contract under which the building was being erected. The compensation of the contractors, for labor and material, was to be six per cent. of the actual cost, which was not to exceed $28,160. If the work could be done for less than that amount, the money thus saved was to "revert back to the owner, subject to any and all additions and deductions that may be agreed upon between the owner and contractor in writing * * *" This provision is said to mean that no charge could be made for extra work unless authorized by written agreement of the parties. There was no such agreement in reference to the additional brick, concrete and iron work, costing about $1,900, performed by the contractors, and for that reason their right to include the items of such work in their present claim is disputed.
It was the purpose of the contract to express the obligation of the contractors to do the work according to the specifications, and within a stated time and cost, and the duty of the owner to pay in certain installments the amount of the actual cost, not exceeding the sum designated, including the contractors' compensation of "6% on the total cost of the operation," and to assure the owner that he would have the benefit of any reduction of the cost which might be feasible. The clause upon which the owner relies to defeat the claim for extra work makes no explicit reference to that subject. It simply provides that any money saved in the construction cost should revert to the owner subject to any additions and deductions upon which the parties might agree in writing. It could be readily understood from the language of the provision that it had reference to possible agreements for the increase or reduction of the maximum cost stipulated. If it was the design to place restrictions upon the liability of the *100 owner to pay for extra work performed at his request, the contract fails to express that purpose with the clearness and certainty which ought to characterize such a provision.
But assuming the correctness of the owner's theory as to the meaning of the contract in this respect, we have still to determine whether his defense to the claim for extra work can be conclusively sustained as against the evidence tending to prove a recission of the contract in consequence of his own violation of its terms. If he in fact committed a breach of the contract by failing to pay earned amounts to which the contractors were entitled, and by ordering them to leave the work because of their disagreement on that subject, there is no just reason why any provisions of the agreement thus rescinded should be available as a ground of defense to a claim for labor and materials furnished at the owner's request in the improvement of his property. The suit is not upon the contract, but upon the common counts, and the items of extra work and materials are included in the bill of particulars accompanying the declaration. It was the right of the contractors, if they were prevented by the owner's conduct from duly completing the contract, and if they were themselves without fault, to sue upon it for a breach, or to treat it as rescinded and recover in general assumpsit for the value of the work actually performed. North v. Mallory,
The defendant's fifth prayer, which was granted after being modified by the court, proposed in its original form to instruct the jury that the provision in the contract referring to additions and deductions meant extra work on the building *101 or elimination of parts of the work, as shown in the plans, and that for any such changes an agreement in writing was requisite. The court modified the prayer by adding the words "unless the jury shall further find from the evidence that such stipulation was expressly waived by both of the parties to the said contract." A special exception to the modification was filed by the defendant on the grounds, among others, that there was no evidence of any express waiver of the provision referred to, and that a question of law was thereby submitted to the jury. While there may have been a sufficient basis for the exception to the modification of the prayer, we are of the opinion that the prayer as offered was defective, because it disregarded the issue as to whether the defendant committed a breach of the contract by which its complete performance was prevented, in which event the provision cited would not be enforceable. The effect of the modification, therefore, was to qualify an instruction proposed by the defendant which he was not entitled to have granted. In accomplishing that result, under the conditions shown by the record, the amendment involved no prejudicial error justifying a reversal.
By the defendant's second prayer, which was granted, the burden was properly placed upon the plaintiffs to prove that there was a breach by the defendant of the contract in evidence or that its performance was prevented by the defendant or that there was an assent by the defendant to its abandonment. This instruction sufficiently served the purpose of the defendant's fourth prayer, which was refused.
The rejection of the third prayer of the defendant was proper because it stated an inadequate ground of defense.
The only other prayer of the defendant sought to have the case withdrawn from the jury, and the action of the court in refusing it was clearly right.
The single prayer granted at the request of the plaintiffs authorized a recovery even though the work was not done in strict conformity with the contract, provided it was accepted by the defendant, but the jury were directed to make an allowance *102
for any damage sustained by the defendant, through the plaintiffs' default, if the jury should find that any such default occurred. This prayer was based on one considered inBaltimore v. Kinlein,
The building contracted for was not finished within the period of ninety days stipulated for its completion. The delay in the work of the original contractors was attributed by them to the defendant's failure to make payments in proper time and amount and to the construction changes ordered. It was proposed by the defendant to testify as to what storage business had been offered him for the new garage building at the period when, as he claims, it should have been ready for use. The admissibility of such testimony is urged on the theory that the storage income derivable from the proffered business would indicate the rental value by which loss from the delay might have been measured. No proffer was made to support that theory by proof sufficiently definite and complete to enable us to hold that the objection was erroneously sustained. Winslow Elevator Co. v. Hoffman,
In our examination of the rulings questioned by the other exceptions we have found no error which requires that the case be remanded for another trial.
Judgment affirmed, with costs. *103
