| Md. | Mar 14, 1872
delivered the opinion of the Court.
This is an appeal by the defendant. The only questions presented arise upon the third, fifth and sixth prayers of the plaintiffs, which were granted by the Court below; and the second prayer of the defendant, which was refused.
The claim of the plaintiffs was for damages for an alleged breach of contract by the defendant, and for extra work and materials done and furnished at the instance of the defendant.
It appears that a written agreement was made between the parties, containing specifications of the work to be done, with the prices and terms; this agreement was dated the 16th day of August, 1867, but not signed by the plaintiffs until October 28th, 1867. They proceeded however in the meantime, in execution of the work.
The contract stipulated that the prices were to be paid upon monthly estimates made by the company’s engineer, as the work progressed, as follows, viz.: one-third in cash, one-third in the bonds of the company, estimating them as worth seventy-five cents on the dollar, and the remaining third in bonds at the same rate, to be retained by the company until the work was done. Evidence was offered by the defendant
We think it by no means clear that such is the real meaning or true construction of the letter. But it is immaterial now to discuss that question; for there was conflicting evidence before the jury as to whether the proposition in the letter was actually accepted, or any such modification or change in the contract made. This last was not signed till ten days after the letter was written, and Thomas Clarke, the plaintiff) (who testified as a witness,) stated that “ when he went to sign the contract, he asked Mr. Barbour, the president what the company were going to do about a proposition made by Placide & Clarke about the bonds mentioned in the contract. Barbour said the company had not acted on it, and Clarke signed the contract, remarking that he supposed the bond proposition was rejected.”
But this question was for the jury, and was properly submitted to them by the first prayer of the defendant, which was granted. This gave it the benefit of its defence under the contract as modified, provided the jury should find from the evidence that such modification had been agreed on by the parties.
It has been argued that there was error in granting the plaintiffs’ third prayer, fixing the measure of damages.
The appellant contends, that if two-thirds of the contract price was payable in the bonds of the company, and they were not tendered, the true measure of damages was the difference between the money actually paid, and the value of the part payable in bonds at the time when the bonds ought to
This general proposition is no doubt supported by the decisions of the Supreme Court in Hopkins vs. Lee, 6 Wheaton, 109, and Robinson vs. Noble’s Admin., 8 Peters, 181; and has been sanctioned by the Court of Appeals in Canned vs. M’Clean, 6 H. & J., 297; Alexander & Tyson vs. Macauley, 6 Md., 360.
In this case however there was no evidence showing what was the market value of the bonds at the time the plaintiffs were entitled to receive them, or that they were of less value than the price stipulated at which the plaintiffs agreed to take them: In the absence of such proof, there was no error in assuming that they were worth the price put upon them by the parties; that is prima facie evidence of their value, and there being no proof to the contrary, the defendant cannot justly complain that the Court below did not submit to the jury to find a fact of which there was no evidence. In such a state of the proof, the third prayer of the plaintiff stated the true measure of damages; which was the difference between the value under the contract, of the work and materials done and furnished by the plaintiffs, and the amount which had been paid to them. There could be no other standard of the plaintiffs’ right to recover, except the value fixed by the contract; the fact that the bonds of the company were to be taken in payment at a stipulated price, could make no difference, unless it was shown by the proof that they were of less value than the price agreed on at the time when the plaintiffs were entitled to receive them.
We do not understand this prayer as confining the consideration of the jury to the contract of the 16th of August, 1867; on the contrary, it leaves the whole question open for the jury to find upon the evidence what was the real contract between the parties; and fixes as the standard the value of the work and labor, “ under such contract, as they may find to have been the contract between the parties.”
We can discover no well founded objection to the fifth and sixth prayers of the plaintiffs; they announce very plain and familiar principles.
If the plaintiffs were delayed in the execution of the contract by the default of the defendant, or its failure to comply with the contract on its part, and were thereby damaged; they were entitled to recover such damages. And in the same" manner the instruction given to the jury in the sixth prayer, with respect to extra work and materials done and furnished by the plaintiffs beyond that stipulated for in the contract, was correct. If it was required by changes in the original plans made by the defendant, and done at the instance of the company and accepted by it, the plaintiffs were entitled to be compensated therefor.
We think there was no error in refusing the defendant’s second prayer; for the reason that there was no evidence proper to be submitted to the jury, “that the plaintiffs by the use of all reasonable and proper exertions in the use and disposition of their own moans, might have saved themselves from the loss occasioned by the defendant’s default.” It has been argued that there was evidence that Clarke, one of the plaintiffs, had private means or money of his own, which might have been employed in fulfilling the contract, and therefore the plaintiffs ought not to recover for loss occasioned by the failure of the company to pay them promptly according to the contract; but that is not a sound argument ; nor does it follow that the second prayer ought to have been granted, because there was evidence that some of the delay in the work was caused by the negligence of the contractors. Under the instructions given to the jury the plaintiffs were not entitled to recover for any loss occasioned by such delay, but only for such as resulted from the failure and default of the defendant.
Finding no error in the rulings of the Court below, the judgment will be affirmed.
Judgment affirmed.