66 Md. 598 | Md. | 1887
delivered the opinion of the Court.
The Hoopes Artificial Stone, Cement and Paint Company made a contract with the Presbyterian Church of Hagerstown, by which it agreed to cover the walls of its parsonage with artificial stone. The evidence tended to show that some of the terms of the contract were verbal, and that others were contained in written correspondence between the parties. This suit was brought by the Hoopes Company to recover an amount alleged to he due for the work done on the parsonage. There was evidence that it was agreed that the walls were to he covered with artificial stone of a gray color, which was warranted to endure exposure to the weather and not to peel off; and also that the work was imperfectly done, and not in the manner required by the contract; and especially that the stone covering was streaked, speckled, spotted, and of a variegated and unsightly appearance. It was the function of the jury to pass on the weight and value of this testimony ; and it is our duty to state the propositions of law applicable to it.
It will be seen that we think that on the facts stated in the plaintiff’s first prayer, it was entitled to recover the contract .price, and that the defendant’s fourth prayer ought to have been granted. The defendant’s first prayer was properly rejected. It was objectionable on account of its generality; but apart from this objection, it was erroneous. An action could be maintained on the common counts by the plaintiff, if it had entirely performed its jDart of the contract, and nothing remained to be done to entitle it to the payment of the contract price,
For error in the rejection of the defendant’s fourth prayer, the judgment must he reversed and a new trial' ordered.
Judgment reversed, and new trial ordered.
Judge Stone dissented.