85 Md. 337 | Md. | 1897
delivered the opinion of the Court.
This was an action on the common counts in assumpsit. Keelty, the plaintiff below, entered into a written contract under seal with Orem and others, the defendants, for grading and constructing streets, avenues and sidewalks through a tract of land in the city of Baltimore belonging to them. The contract embraced a number of details, which the present purpose does not require us to consider. It was agreed that payments should be made at stated intervals upon estimates furnished by S. J. Martenet and Company, and that Orem and his associates should retain ten per cent, of the amount of these estimates, and that the sum so retained should be due and payable only on the completion of the work before the first day of September, eighteen hundred and ninety-five. The grades were to be furnished by S. J. Martenet and Company, and the work was to be done in a good workmanlike manner, under their instructions and subject to their approval. The work was prosecuted under the contract until July, eighteen hundred and ninety-five, when Martenet and Company refused to furnish the grades to Keelty which were necessary for the continuance of the work ; but they were furnished on the eleventh day of Sep
The evidence did not show distinctly the circumstances which caused the refusal on the part of Martenet and Company to furnish the grades. But we will assume for the purposes of this case that it was owing to the default of Keelty. But, nevertheless, one fact stands prominently forward which has not been made the subject of contestation or denial. After the expiration of the time appointed for the completion of the work the defendants permitted Keelty to continue it, furnished him with the grades which were necessary to enable him to do so, and accepted the work and received the benefit and advantage of it. Under these circumstances there can be no doubt that the defendants are bound to pay a fair compensation for the work, labor and materials of the plaintiff. Keelty could not have sustained an action of covenant on the contract under seal; but after the failure to complete the work under the conditions of the sealed instrument a new and distinct contract arose from the acts of the parties ; from the work, labor and materials of the plaintiff furnished for the benefit of the defendants and received and appropriated by them to their own use and benefit. The opinion of this Court in Watchman v. Crook, 5 G. & J. 240, leaves this question in no doubt. It is there said : “ If after the work was done, though not pursuant to the contract, the party for whom it was done, accepted it, it would seem right and proper that he should pay for it what it was worth. This, we think, justice would require, and it is believed, that the principles of law do not forbid it. To this effect the law is stated to be in
The plaintiff could not have recovered in an action of covenant on the sealed instrument, because he would have been obliged to allege and prove the completion of the work before the first day of September, eighteen hundred and ninety-five. But parties to a contract have a right to change it as they mutually agree to do. And here by their dealing with each other they have made a new contract superseding the sealed instrument; that is to say, the law determines that in justice and right a new contract shall be implied. This new contract provides that the plaintiff shall recover the value of his work, and that the defendant shall be allowed such damages as have been caused by delay. The value of the work, if properly performed, is measured by the contract price. There is, however, no sufficient evidence in the record to show any amount of damage sustained by the defendants in consequence of the failure to complete the work at the stipulated time. There
Inasmuch as we have based our opinion on the assumption that the delay in completing the work was owing to Keelty’s default, and on the ground that there is no evidence of any amount of damage to the defendants by the ■delay, the rejection of the evidence in the first exception is of no consequence. We think that the plaintiff’s prayer was properly granted. The defendant’s prayers are drawn on the theory that the sealed instrument is the cause of action ; but they are not applicable to the implied contract which became substituted in its place.
Judgment affirmed.