City of Baltimore v. Clark

• Decision Date: 05 April 1916
• Docket Number: 47
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. CLARK.
• Court: Maryland Court of Appeals

97 A. 911

128 Md. 291

MAYOR AND CITY COUNCIL OF BALTIMORE v. CLARK.

No. 47

Court of Appeals of Maryland

April 5, 1916

Appeal from Baltimore Court of Common Pleas; Walter I. Dawkins Judge.

"To be officially reported."

Suit by Charles B. Clark against the Mayor and City Council of Baltimore. Judgment for plaintiff, and defendant appeals. Reversed, and new trial awarded.

Prayers of plaintiff contractor for construction of city sewer held erroneous, in ignoring evidence of determination by defendant's water engineer, conclusive by provision of the contract, in the absence of fraud. Plaintiff's granted prayers and defendant's rejected prayers are as follows:

Plaintiff's first prayer: "At the request of the plaintiff, Clark, the court instructs the jury that, if they find from the evidence in this case the following facts: (1) That sheeting was required by the excavation work in building the sewer referred to in the evidence. (2) That, in order to do the excavation work involved (included) in preparing the trenches for said sewer, it was necessary for said Clark to excavate a trench outside of beyond the (neat) lines of a trench having a width at the bottom of 109 inches for the 69 inch sewer, and a width at the bottom of 96 inches for a 60 inch sewer. (3) That the water engineer of the city, or his representative, measured or estimated the material so excavated on the basis of a width of trench of a less area than the trench as actually excavated--then, by the true construction of the contract involved in this case, the plaintiff is entitled to be paid for all such material as was (reasonably) necessary to be so excavated for which the jury may find the plaintiff, Clark, has not been paid or allowed by the city, at the rate per cubic yard of $1.20 for loose rock, $2.75 for solid rock, and 60 cents for earth." Granted as modified.

Plaintiff's second prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence in this case that, in excavating the earth or loose or solid rock in constructing the trenches for the work involved in this suit, it was necessary for the plaintiff, Clark, to excavate the same below the grade established by the city's water engineer, and that the plaintiff, Clark, has not been paid for or allowed by the defendant, the city of Baltimore, for any material excavated below the grade established by the city's water engineer then the plaintiff, Clark, is entitled to recover therefor to such depth as actually excavated, not exceeding six inches below the established grade (payment therefor to be made at the rate of $1.20 for loose rock $2.75 for solid rock)." Modified and granted.

Plaintiff's fourth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence in this case that the defendant's water engineer. Quick, did by two letters dated October 8 1908, and October 19, 1908, order in writing certain additional concrete outside of the lines called for by the plans offered in evidence, said concrete to be placed where directed either by said Quick, or his representatives, Sudler or Beatty, and that the plaintiff, Clark, did in consequence of said letters between the dates of October 8, 1908, and December 12, 1908, at places authorized by any one or any of said Quick, Sudler, or Beatty, certain extra concrete work for which he has not been fully paid or allowed by the defendant, then the plaintiff is entitled to recover therefor at the rate per cubic yard of $8 for invert work and $9 for arch work, provided the jury find further that defendant's water engineer or his representative failed or refused to measure or estimate all of such extra concrete as so directed to be done, and shall further find that the same has not been paid for or allowed to the plaintiff by the defendant in the payments made to said plaintiff." Granted as modified.

Plaintiff's fifth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence in this case that the plaintiff Clark, put certain sheeting in the trenches for the erection of the diversion sewer referred to in the evidence, and that the plaintiff, Clark, has not been fully paid by the defendant, the city of Baltimore, for all sheeting which the defendant engineers saw in the trench and in their discretion did not order to be withdrawn therefrom, then the plaintiff, Clark, is entitled to be paid for all such sheeting which the jury find was so left in the said trenches and was not ordered to be withdrawn by the defendant's engineers, and for which he has not been paid; if the jury so find, at the rate of $40 per thousand feet board measure. Provided, however, the jury further find that the said timber was left in the exercise of such discretion by the defendant's water engineer or his representative, and shall further find that the said engineer or his representative, in computing the monthly and final estimates for sheeting, did not measure the entire amount of such sheeting or did not have reasonably adequate information upon which to prepare such estimates and did not exercise reasonable diligence to secure such adequate information, and made (gross) errors in allowing to plaintiff, Clark, for sheeting in such estimates." Granted as modified.

Plaintiff's sixth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence in this case that on or before October 11, 1909, the defendant's water engineer or his representative, with full knowledge of all matters connected with the work involved in this suit, prepared and gave to the plaintiff, Clark, a final estimate of all work done, showing a balance of $6,008.67 due to the plaintiff, and the city's water board, with a full knowledge of all matters connected with the work involved in this suit, did on or about October 13, 1909, unconditionally accept the said work and that the said water board did on or about November 27, 1909, make a payment of $3,000 on account of said final estimate, then the plaintiff, Clark, is entitled to a verdict for the unpaid balance of said final estimate, to wit, $3,008.67." Granted.

Plaintiff's seventh prayer: "At the request of the plaintiff, Clark, the court instructs the jury that if they find from the evidence that the city's engineers on the work referred to in the evidence required the plaintiff to do certain extra concrete work and failed or refused to give the plaintiff orders in writing therefor, and that the plaintiff was by such failure or refusal, if the jury so find, delayed in the execution of the work required by him to be done under the contract between the parties to this case, and was thereby damaged, then the plaintiff Clark, is entitled to recover therefor in this action." Granted.

Plaintiff's eighth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that the measure of damages for any delay caused to said Clark by the defendant, or its agents, in the premises, (if the jury so find), is the allowance of such sum to the plaintiff as is reasonably necessary to place him in the same condition he would have been in if he had been allowed to proceed without any interference by the defendant or its agents in the premises." Granted.

Plaintiff's ninth prayer: "At the request of the plaintiff, Clark, the court instructs the jury that, if they find a verdict in favor of the plaintiff, Clark, then they may (are entitled) in their discretion allow the plaintiff, Clark, interest upon such amount as they may find to be due to the said plaintiff at (the same at) the rate of 6 per cent. per annum, said interest to commence from 30 days after the material and work had been furnished in conformity with the terms of the contract between the parties and (30 days) after the completion and acceptance of the work in writing by the city's water board." Granted as modified.

Defendant's first prayer: "The court instructs the jury that, under the contract offered in evidence, the water engineer was authorized to determine all questions in relation to the amount and quality of the several kinds of work which were to be paid for under said contract, and to determine all questions in relation to said work and the construction thereof, and decide all questions which might arise relative to the execution of said contract on the part of said contractor, and that the estimate and decision of said water engineer, by the agreement of the parties, was made final and that such estimate and decision of the amount and quality of the several kinds of work to be paid for under said contract is a condition precedent to the plaintiff's right to recover, and that upon the undisputed evidence in this case the said water engineer did, on the 11th day of October, 1909, render his decision upon every question in dispute between the parties, and did send a statement to the city comptroller showing his decision, and that according to said decision and the evidence there is now due the contractor (plaintiff) the sum of $3,008, with or without interest thereon, in the discretion of the jury, from the time when the same was due and payable; that there is no evidence in this case legally sufficient to show that the said water engineer, or any engineer representing the defendant on the work mentioned in the evidence, was guilty of any fraud or bad faith in the rendering of said decision, and therefore the same is binding, in this case, and the verdict of the jury should be in accordance therewith." Refused.

Defendant's second prayer: "The court instructs the jury that, under the contract offered in evidence, the water engineer was authorized to determine all questions in relation to the amount and

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