Baltimore Luggage Co. v. Ligon

• Decision Date: 05 December 1955
• Docket Number: No. 44,44
• Citation: 118 A.2d 665,208 Md. 406
• Parties: The BALTIMORE LUGGAGE COMPANY, a body corporate, v. William D. LIGON, III, trading as North End Contractors.
• Court: Maryland Court of Appeals

Page 406

208 Md. 406

118 A.2d 665

The BALTIMORE LUGGAGE COMPANY, a body corporate, v. William D. LIGON, III, trading as North End Contractors.

No. 44.

Court of Appeals of Maryland.

Dec. 5, 1955.

Albert L. Sklar, Baltimore (Henry R. Wolfe and J. Leonard Feinglass, Baltimore, on the brief), for appellant.

Clayton A. Dietrich, Baltimore, for appellee.

Before BRUNE, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

William D. Ligon, III trading as North End Contractors, sued to recover the balance due on the contract price for excavating and removing earth in the rear of the building of The Baltimore Luggage Company so as to make a parking area. The luggage company filed a counter-claim to recover the monies it had paid for the work the contractor did not do, and which it claims the contract required him to do. The case was submitted to a jury on issues and the luggage company appeals from the judgment for the contractor entered by the court on the special verdict.

The parties are in accord that this appeal requires the answering of three questions: (1) whether the issues submitted and the court's instructions as to them were adequate and proper, or whether they were inconsistent, conflicting and, so, confusing to the jury; (2) whether the court correctly interpreted and applied the findings of the jury in entering the judgment for the contractor; and (3) whether the appeal was taken in time or whether the contractor's motion to dismiss, on the ground that the filing was late, should be granted.

The parties entered into a written contract dated June 14, 1952, by which the contractor, for the sum of $4,778, agreed to excavate and remove dirt from an area in the rear of the luggage company's building, in accordance with the drawing of an architect attached to the agreement as part thereof. The parties disagreed, and now differ, as to the true meaning of the contract and the extent of the undertaking. The architect's drawing showed that slopes on a two to one grade were to be constructed where the land of the luggage company met the land of the Pennsylvania Railroad on one side and the land of the City of Baltimore--a playground-- on another side. The contractor claims that the top of each of the slopes was to be at the boundary line, so that all of each slope would be on the land of the luggage company, with the top of each slope some twenty-five or thirty feet to the inside of the luggage company's line. The contrary contention is that the top of each slope was to be at the boundary line, so that all of each slope would be on the property of the railroad or the City, respectively, and the tops of the slopes would be twenty-five or thirty feet within the land of these adjoining owners. When the contractor had completed the work according to his version of the contract, he called for an inspection by the luggage company and was given a check for half of the contract price. Shortly thereafter, he was told that he was expected to complete the project according to the version of the luggage company. He testifies that this he refused to do unless he was given a letter stating that he would be paid for the extra work. The contrary testimony is that all that was requested was a letter of indemnification against the consequences of trespass on the land of the railroad company and the City in the doing of the work. The luggage company sent this letter: 'This is to advise you that if you follow the instructions of our architect, Morris Zimlin, in doing the job in the rear of our building, we will take the responsibility of the possibility of your going beyond our property line.'

The contractor, now being fully aware that all of the work demanded would be beyond the property lines of the luggage company, refused to proceed and removed his equipment from the site. Thereafter, the luggage company paid its architect an additional fee of $250 and, at his suggestion, engaged the services of engineers at a fee of $255 to determine how many cubic yards of earth would have to be moved and replaced to construct the slope as was desired, and then hired the Arbutus Excavating Company, the next to low bidder at the time of the award, to complete the work. The testimony is undisputed that the removal of 4,200 cubic yards was necessary to complete the work as the luggage company wanted it done and that there was no earth needed to be moved or was moved within the area already excavated by the contractor. The luggage company paid $2,310 to Arbutus to move the 4,200 cubic yards of earth. The contractor's suit sought the difference between $2,389, which had been paid him, and the contract price of $4,778, and the luggage company's counter-claim asked the $250 it had paid the architect, the $255 it had paid the engineers, and the $2,310 it had paid to Arbutus.

At the conclusion of the testimony, the court submitted seven issues to the jury: (1) Did the contractor fully complete the contract? The jury's answer was No. (2) Did the contractor do any extra work, and (3) if so, its value? The jury answered Yes, and that the extra value was $377. No error is claimed in the submission of issues two and three or in the answers, it being undisputed that extra work was ordered and done at a fair price. The fourth issue asked, if the jury found the contractor did not fully complete the contract, what, if any, expense was the luggage company reasonably put to to complete the contract? The jury's answer was $125. The fifth issue was: What was the value of the excavation actually done by the contractor? The answer was '$3,185.32 less payment of $2,389 or $796.32 still due.' The sixth issue was: Did any acts of the luggage company delay work on the contract, to which the answer was No, and the seventh issue, which became immaterial, was what loss did the contractor suffer by the delay if the answer to six is Yes.

The jury's verdict was returned on January 21, 1955. On January 26, 1955, the court entered a judgment on the verdict for $1,048, which was $796.00, plus $377.00 for the extra work, less $125 which the luggage company spent to complete the contract, as the jury saw it.

The luggage company filed a motion for a judgment N.O.V. or, in the alternative, for a new trial, on January 28, 1955, and on March 11, the motion was denied. An appeal was filed on March 26. The dispute as to whether the appeal is timely stems from whether the judgment entered on January 26 was a judgment nisi or a final judgment.

It is to be noted that the contract admittedly was wholly in writing. Nevertheless, each side offered testimony to show that the true reading and meaning of the architect's drawings were as it interpreted the contract. The contractor himself and his foreman testified that they were accustomed to reading blue prints, that to them the prints meant, as any other similar prints would mean, that the slopes were all to be on the property of the luggage company, with the top of the slope on the boundary line, that they had requested that stakes be placed by the owner to designate the property lines, as the contract specifically provided would be done, because it could not be told from the prints where the property lines were. They further pointed out that attached to the contract, as a specific part of it, was a letter from the contractor to the luggage company dated June 14, 1952, which stated that the excavation was to be as per plans of the architect in an area 'bounded by West Mulberry Street, Pennsylvania R. Rd., Baltimore City School and the 'existing' street south of the property.' They testified further that if the contract meant what the luggage company said it means, the top of the slope on a two to one grade would be under the middle of the Pennsylvania Railroad tracks and that that portion of the work as finally done by Arbutus was not according to the original plans, but that the grade was far steeper and that a retaining wall had been built to hold the grade in place. On the other hand, the luggage company offered testimony to show that the drawings, read by those accustomed to reading them and competent to do so, would mean that the slope would be all outside the property lines of the laggage company and that this was what was intended by that company. This testimony on both sides came in without objection. This being so, as was said in Irving Trust Co. v. Williams, Inc., 168 Md. 588, 597, 178 A. 848, 851: 'There were no exceptions to the admitted parol evidence on the subject, and it is therefore unnecessary to decide whether that evidence was admissible because of any ambiguity in the terms of the written agreements under consideration.'

The court did not construe the constract and instruct the jury as to its meaning and effect. The contractor asked for instructions that the meaning and effect of the contract was as he contended and, at the conclusion of the court's charge, excepted to its failure to so instruct, but the contractor has not appealed. The luggage company neither asked the court to construe the contract nor excepted to its failure to do so. This being so, he may not complain here for the first time that the jury was improperly allowed to pass on the contract. General Rules of Practice and Procedure, Part Three, § III, Rules 6(c), 6(d) and 7(b). It is not necessary for us, therefore, to determine whether the contract was of the kind dealt with in Highley v. Phillips, 176 Md. 463, 5 A.2d 824, and so to be interpreted and construed by the court alone or whether the rule of Keyser v. Weintraub, 157 Md. 437, 146 A. 275, 65 A.L.R. 641, should have been followed--there it was held that when a written instrument is on its face so ambiguous as to necessitate the production of evidence outside the instrument to determine the real contract between the parties and that evidence is conflicting there is presented a mixed question of law and fact which should be submitted to the jury with the...