Parker v. Tilghman V. Morgan, Inc.

• Decision Date: 24 January 1936
• Docket Number: 30.
• Parties: PARKER ET UX. v. TILGHMAN V. MORGAN, INC., ET AL.
• Court: Maryland Court of Appeals

183 A. 224

170 Md. 7

PARKER ET UX. v. TILGHMAN V. MORGAN, INC., ET AL.

No. 30.

Court of Appeals of Maryland

January 24, 1936

Appeal from Circuit Court, Baltimore County; C. Gus Grason, Judge.

Separate proceedings by Tilghman V. Morgan, Incorporated, by L. J Mueller Furnace Company, and by Robert S. Green Incorporated, against Sumner A. Parker and Dudrea W. Parker his wife, who filed a cross-bill against Tilghman V. Morgan Incorporated, and the cases were consolidated. From an adverse decree, Sumner A. Parker and Dudrea W. Parker, his wife, appeal.

Affirmed in part, and reversed in part, and cause remanded for decree in accordance with opinion.

Argued before BOND, C.J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

Albert C. Ritchie and Wendell D. Allen, both of Baltimore, for appellants.

Thomas M. Jenifer, of Towson (Fendall Marbury, of Baltimore, and Jenifer & Jenifer, of Towson, on the brief), for appellee Tilghman V. Morgan, Inc.

Edward D. Martin, of Baltimore (Alexander Hardcastle, of Baltimore, on the brief), for appellee L. J. Mueller Furnace Co.

Albert A. Sapero, of Baltimore, for appellee Robert S. Green, Inc.

PARKE Judge.

Sumner A. Parker and Dudrea A. Parker, his wife, entered into a contract on January 27, 1932, with the corporation called Tilghman V. Morgan, Inc., to furnish all the materials and perform all the work called for in certain plans and specifications for the erection of a stone dwelling house, with a garage attached, on a tract of land in Baltimore county which was owned by the husband and wife. The materials and labor were to be paid for in cash as the work progressed, and the final payment was to be made thirty days after substantial completion of the work. The contractor began work before the month ended and maintains that it had fully performed, with some agreed changes and alterations in the plans and specifications, the contract by January 26, 1933, but that, although demand has been made, only a part of the contract price has been paid by the owners. Within six months after the performance of the work and of the furnishing of the material, the contractor filed in the office of the clerk of the circuit court for Baltimore county its claim as a lien on the house, its location, and so much other adjacent ground of the owners as might be necessary for the ordinary and useful purposes of the building. The amount charged to be due is $8,749.30, with interest from January 27, 1933, less some credits to be allowed on account of payments whose amounts were unknown to the contractor, but which were made by the owners to subcontractors and materialmen. The amount stated embraces claims of the L. J. Mueller Furnace Company and Robert S. Green, Inc., subcontractors and materialmen, which have, also, filed mechanics' liens against the property. The Johns Hopkins Hospital acquired a mortgage lien on the land in question on November 3, 1932, which was after the contractor had begun the performance of its contract. These statements are an abridgment of the allegations of a bill of complaint filed by the contractor against the owners, their mortgagee, and the two other corporations which have filed mechanics' liens as stated. The bill of complaint is to recover the amount of the contractor's mechanics' lien by a sale so that the proceeds may be apportioned among the persons entitled to liens according to their respective rights. Code, art. 63, § 25.

The claim of the furnace company is $1,879.14, with interest from December 7, 1932, and that of the Robert S. Green, Inc., is for cement, sand, fire brick, flues, tiles and other materials, and the amount due is $2,248.15. The answer of the owners was a denial of any indebtedness to the contractor or subcontractors. With respect to the contractor, the defense set up is that it did not perform all the work nor furnish all the materials as it had agreed, but, although requested, had refused performance, and that the owners had, in fact, paid to the contractor a large sum in excess of what it was entitled to receive; and that because of the damages done to the property of the owners by reason of the negligent and faulty work of the contractor it had become liable in damages to the owners in a large sum of money in excess of any rightful demand of the contractor. The owners, also, denied the accuracy of the account in respect of the materials and work furnished and the prices to be paid, and demanded strict proof of every item of the account.

The answer of the owners to the claim of the L. J. Mueller Furnace Company is in denial of the obligation on the ground that the contract of the owners with the principal contractor was that the last named should install a certain system which consisted of a furnace, "climator," equipment and appurtenances, and the heating ducts throughout the house; and that the contractor sublet a portion of this work to a subcontractor, who, in turn, sublet the installation of a furnace, climator, and appurtenances to the Mueller Furnace Company, but that, while the equipment had been placed in position for the service intended, it had been so negligently designed and constructed that it had failed to heat the building as had been agreed, but that additional equipment was shortly to be installed, and, until it had been, it would be impossible to determine whether or not the system would supply the premises with heat as had been agreed. The owners further averred that they were already engaged in a litigation on the equity side of the circuit court for Baltimore county with the furnace company in reference to the enforcement of this alleged lien, and that the answer of the owners had been filed. The answer of the furnace company to the bill at bar is of the same effect as to this particular allegation, and on February 12, 1935, the two causes were consolidated as of September 24, 1934.

The owners denied, in the cause now pending, that the Robert S. Green, Inc., had secured a mechanics' lien on the ground that this corporation was a subcontractor, and did not notify the owners of its intention to claim a lien within sixty days after furnishing or delivering the last materials necessary or proper for their building under the terms of the contract. The answer, also, set out the payments made and the credits to which the owners claim they are entitled.

On the same day that the defendants filed their answer they brought a cross-bill against the contractor. The bill proceeds upon the theory that on January 27, 1932, the parties had agreed, subject to later changes and modifications, in respect of the erection of a dwelling house and garage by the contractor for the owners, and that one of the terms of the contract was that the work should substantially be completed by July 1, 1932, provided that the owners did not delay the contractor by not supplying the materials which were to be furnished by the owners, but that, without any default on the part of the owners, the contractor did not complete their undertaking by the time agreed, and had not fully performed its contract when the cross-bill was filed, but that the owners, notwithstanding the incomplete condition of the dwelling house, had moved into the same about November 15, 1932, and had there remained, without an acceptance. The cross-bill of complaint shows that a large sum of money had been paid by the owners to the contractor, but alleged that they were not bound to make the final payment until the contractor had fully performed the contract, and that the contractor was to be responsible for faulty materials or workmanship and was to remedy any defects and respond in damages to other work that might result therefrom and should appear within a period of one year from the date of substantial completion. It was further charged that the contractor had agreed to be responsible to the owners for any damages which might be sustained because of its negligence or of that of any one employed by it.

The cross-bill then avers that the contractor, without any fault on the part of the owners, had been guilty of many breaches. The building had not been substantially completed, although the time for this had elapsed. There were faults of construction, negligence in work, defects in material and disregard of plan and specifications. These and other breaches of the contract were set forth at length, and their consequences were asserted to be a great loss in damages because of the large expenditures necessary to be made by the owners to complete the building as had been agreed by the contractor, and because of the structural injury caused to the building and to the paintings, furniture, and other personal property of the owners which had been moved into the building. The sum of these damages is charged to be greatly in excess of what the contractor would have been entitled to receive if it had performed the contract as agreed, so that, if credit be given the contractor for all work properly done, the contractor would, the owners claim, still be in debt to the owners in the sum of $20,000 for the net damages sustained by the owners.

The relief asked is that the suit of the contractor to enforce its mechanics' lien be dismissed, and that a decree in personam be granted the owners against the contractor in the amount of $20,000 or in such other amount as the court may find would be due the owners by reason of the default of the contractor, and that the owners might have general relief.

The contractor demurred to the cross-bill on the ground that it is so vague, indefinite, and general in its allegations that a more certain and specific bill is required for the defendant to answer. The chancellor overruled the demurrer and the contractor answered. The contractor's...