Berkley v. Wilson

• Decision Date: 10 February 1898
• Citation: 39 A. 502,87 Md. 219
• Parties: BERKLEY v. WILSON et al.
• Court: Maryland Court of Appeals

39 A. 502

87 Md. 219

BERKLEY v. WILSON et al.

Court of Appeals of Maryland

February 10, 1898

Appeal from Baltimore city court.

Action by Henry J. Berkley against J. A. Wilson and others for damages from negligence in constructing a building. From a judgment for the defendants, plaintiff appeals. Affirmed.

Argued before MCSHERRY, C.J., and BRYAN, BRISCOE, PAGE, BOYD ROBERTS, and FOWLER, JJ.

John P Poe, for appellant. Wm. A. Fisher and John J. Wade, for appellees.

FOWLER J.

The appellant made a contract with one Bunnicke to build a house on Park avenue, in Baltimore, according to plans and specifications to be prepared by the appellees, who are architects. The work was done by Bunnicke under their supervision, inspection, and direction. They agreed to, and in fact did, prepare the plans and specifications, and also supervised and examined the work as it progressed, and until its completion. In the year 1890, the appellant being dissatisfied with the work done by Bunnicke, as well as with the plans and specifications prepared by the appellees, and with their supervision of the work, brought two suits,--one against the appellees, and the other against Bunnicke. In his action against the latter, the appellant claimed damages for the violation by him of the building contract. Bunnicke, by his pleas, admitted the contract as alleged in the narr., but denied that he had violated it, or any part of it, or that by any breach of covenant he had caused the appellant to suffer any damage whatever. The case against Bunnicke was tried upon its merits before a jury, and the result was a verdict for one cent damages, and a judgment of non pros. The case now before us was also tried upon its merits, as we think, and the verdict of the jury was for the appellees. During the trial the plaintiff (now appellant) reserved two exceptions. Both of them, however, raised the same question, namely, that which is presented by the plaintiff's demurrer to the defendants' additional plea, which is a plea against the further continuance of the suit, puis darrein continuance, so far as said suit rests upon the alleged violation of contract by Bunnicke. The second and third pleas having been withdrawn, and the demurrer to all the other pleas having been sustained, the case was tried upon the general issue and the issue joined upon the replications to the plea just mentioned. By this plea the former suit against Bunnicke to recover damages for his alleged breach of the building contract, the recovery therein of a verdict, and the tender by Bunnicke of the amount of such verdict before the trial of this case, are set up by the defendants as a bar to so much of the damages here sued for as were recovered in the other suit. The demurrer to this plea was overruled, whereupon two replications to it were filed. The first alleged that the damages claimed by him in this suit are not damages claimed for the same matters set out in said suit against Bunnicke, and the second asserted that the appellees were the supervising architects employed by him to superintend the building, and that it was their duty to see that no improper work was done, or defective and improper materials furnished, by Bunnicke; that they negligently and carelessly approved of work done and materials furnished by Bunnicke, and wrongfully accepted said work, whereby his right of action against Bunnicke was injuriously affected, and whereby he sustained damages not recoverable against said Bunnicke; and that the damages claimed in this suit are not the same damages, nor are they covered by or included in the former suit against Bunnicke. Issue was joined upon these replications.

The first exception is based upon the refusal of the trial court to exclude from the jury the record in the former case against Bunnicke, and the second exception arises upon the defendants' second and fourth prayers, which were granted. These prayers both instructed the jury substantially, that, if they find the facts set forth in the additional plea, they must confine their attention to the question whether the appellees exercised reasonable skill and care in the preparation of the plans and specifications, and the superintendence of the erection of the building by Bunnicke; thus, in effect, telling them that, as matter of law, the plaintiff could not recover, under the narr. in this case, any damages...