Presbyterian Church v. Hoopes Artificial Stone, Cement & Paint Co., 66 Md. 598

Presbyterian Church v. Hoopes Artificial Stone, Cement & Paint Co.

66 Md. 598 | Md. | 1887

Bryan, J.,

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.

*603If the plaintiff completed the work according to the terms of the agreement, it was entitled to recover the contract price. If, however, it was done imperfectly, or in any manner variant from the stipulations of the contract, and was accepted by the defendant, the plaintiff was entitled to recover what it was reasonably worth. There can be no question on this point since the decision of this Court in Watchman and Bratt vs. Crook, 5 G. & J., 239. We take the principle to be, that a person entering into a contract, has a right to insist on the performance of it in all particulars, according to its meaning and spirit; but that if he chooses to waive any of the terms introduced for his own benefit, he has the power to do so. If he contracts for an article of a particular quality or style of workmanship, and he elects to accept in lieu of it one of another kind, he discharges the other party from the obligation of furnishing an article which complies with the specifications of the contract, .and he becomes bound by a new implied contract to pay for the article, which he has accepted, what it is reasonably worth. And so where there is a contract for work of a particular description, and he accept work of another kind. But he is not obliged to accept anything else in place of that which he has contracted for; and if he does not waive his right, the other party to the contract cannot recover against him without performing all the stipulations on his part. The question then in the present case, supposing that the work has not been done according to the contract, is whether the defendant has accepted it. The law on the subject of accepting work done on the land or property of another, has sometimes been declared with great severity against parties doing such work in a manner not conformable to the contracts which they have made. But these harsh judgments go beyond the requirements of justice, and are much modified by the benign and equitable construction of contracts which prevails in this State. *604It is true, when work is done on a man’s house, it is in a measure fastened upon him, and he cannot very conveniently relieve himself from it, even if it is not such as he has contracted for, and as he desires to have. If it is covered with a roof for instance, it may he different in its style and workmanship and materials from that which his contract required, and he may have a right to reject it, and demand its removal. But if he permits it to remain, and enjoys the benefit of it, such as it is, he is certainly appropriating the labor and property of another man, and of right ought to make compensation. There is, however, a peculiar feature in this case; the evidence shows that the contract required the artificial stone covering to be of a gray color; it being the object to have the defendant’s parsonage and the church of the same color and appearance. Now, if the color of the coating is of the unsightly character described in the evidence, the purpose of the defendant in contracting for it is entirely defeated, and it cannot be considered as appropriating the labor and materials of the other party; because something has been placed on its building, which it does not wish to have there, and which in no respect whatever fulfils any of its purposes, or bestows any comfort or gratification on it. On the supposition which we have made no acceptance of the work could be implied in law; and all the evidence goes, to show that acceptance was refused in point of fact.

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, *605and also it might he maintained if the work, though imperfectly performed, had been accepted by the defendant. This prayer would have improperly withdrawn these questions from the jury. The defendant sustained no injury by the modification of its second and third prayers by the Court. They ought not to have been granted in the form in which they were presented. The second prayer makes no reference to the question of acceptance of the work by the defendant, which we have seen would have made it liable to a recovery, even although the work had been done in a manner variant from the contract. The third prayer does not mention in terms the alleged failure to conform to the contract color of the stone covering, which is the vital fact in repelling the inference of acceptance, and might probably have misled the jury. The statement attributed to the plaintiff’s secretary ought not to have been inserted in the prayer. There is no evidence in the record to show that the plaintiff was hound by his opinions or judgments. Even if this statement might he regarded as surplusage, it was well calculated to mislead the jury.

(Decided 15th March, 1887.)

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.