City of Baltimore v. Poe

• Decision Date: 03 May 1918
• Docket Number: 8,9.
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. POE et al. POE et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

104 A. 360

132 Md. 637

MAYOR AND CITY COUNCIL OF BALTIMORE v. POE et al.

POE et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

Nos. 8, 9.

Court of Appeals of Maryland

May 3, 1918

Appeals from Superior Court of Baltimore City; John J. Dobler, Judge.

Action by Edgar Allan Poe and others, receivers of the Noel Construction Company of Baltimore City, a body corporate against the Mayor and City Council of Baltimore, a municipal corporation. From a judgment for plaintiffs, both parties appeal. Reversed and remanded.

Argued before BOYD, C.J., and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.

Robert F. Leach, Jr., Asst. City Sol., and S. S. Field, City Sol both of Baltimore, for Mayor and City Council of Baltimore.

J. Kemp Bartlett and Charles F. Harley, both of Baltimore (Robert D. Bartlett, of Baltimore, on the brief), for receivers of Noel Const. Co.

CONSTABLE J.

There are cross-appeals in this case; each party appealing from the judgment rendered in favor of the receivers of the Noel Construction Company.

The case arose out of the contracts awarded to the Noel Construction Company by the city of Baltimore through the board of awards for the construction of the sewage pumping station near East Falls, in Baltimore city. It was proposed by the city to erect the station building by two separate contracts, one for the substructure or foundation, called contract No. 3, and the other for the erection of the superstructure, called contract No. 4, and invited bids for that work. The specifications for contract No. 3 provided that, if that contract was awarded to one bidder, and the contract for the superstructure was awarded to another bidder, the number of working days from the date of the commencement of the work to its completion would be limited to 200 days, but that, if the contracts for both the substructure and the superstructure were awarded to the same bidder, the number of working days from the date of commencement to completion would be limited to 420 days. The same provision as to limit of time for completing the substructure and the superstructure was made in the specifications for contract No. 4; 220 working days if different bidders, and 420 days if the same bidder was awarded both contracts. The Noel Construction Company, being the lowest bidder for each of the two contracts, was awarded both. Provision is made for computing what shall be working days under the terms of the contracts as follows:

"Every day except Sundays and also except legal holidays on which no work is done shall be considered a working day, provided that it is not unfitted either by wind, rain, snow or temperature for working out of doors.

The length of time (expressed in days and parts of days) during which the work has been delayed by any act or omission of the sewerage commission shall be allowed to the contractor and excluded from such computation."

Calvin W. Hendrick, chief engineer of the city, was in charge of contract No. 3, or the substructure contract, and Henry Brauns, an architect, was in charge of contract No. 4, or the superstructure contract. Contract No. 3 contained this provision:

"The engineer shall determine the number of working days that the contractor is in default in completing the work to be done under this contract, and shall certify the same to the commission in writing. *** His determination and certificate shall be final and conclusive."

Contract No. 4 contains the same provision, except the architect is substituted for the engineer. Provision is also made in the contracts that for each and every working day that the engineer or architect shall certify that the contractor is in default in completing the work to be done under the specifications, the contractor shall pay to the city the sum of $35, and that for each day the work may be completed before the time fixed in the contracts for such completion the contractor shall be allowed a premium of $35; also the following provision:

"(53) The contractor shall do such extra work as may be ordered in writing by the architect or engineer with the authorization of the commission. No claims for extra work will be considered or allowed unless said work has been so ordered by the architect or engineer, nor unless the commission shall approve such claim for extra work and certify in writing that in its opinion such extra work was necessary for the public interest, stating in the certificate its reasons."

And the further provision:

"(14) To prevent disputes and litigations, the architect or engineer shall in all cases determine the amount or quantity, quality, acceptability and value of the work and materials which are to be paid for under this contract, shall decide all disputes, questions, and doubts relating to the work and the performance thereof, and shall in all cases decide every question which may arise relative to the contract or to the obligations of the contractor thereunder. His determination and decision shall be final and conclusive upon the contractor and all whom he may employ to execute the various branches of the work, whether as subcontractors or otherwise, and upon all parties from whom materials may be purchased, either by the contractor or by any subcontractor. In case any question shall arise between the contractor and the city touching the contract, the estimate or certificate and decision of the architect or engineer shall be a condition precedent to the right of the contractor to receive any moneys under the contract."

Provision was also made that the contractor would be required to comply strictly with all the requirements of the building regulations and other ordinances of the city of Baltimore, and also the following provision was contained in both contracts:

"(48) The commission reserves the right to suspend the whole or any part of the work to be done hereunder, if it shall deem it for the interest of the city of Baltimore to do so, without compensation to the contractor for such suspension, other than extending the time for completing the work as much as it may have been delayed by such suspension."

The purpose of this building was to receive by gravity all the sewage from South and West Baltimore, and after treating it there to force it by means of gigantic pumps to the disposal plant some miles away. It was necessary for carrying out this purpose to have the foundations unusually strong, and to insure that the following provision was made in contract No. 3.

"(68) It is expected that satisfactory material for the foundations will be found at El. 23, but the contractor shall carry the excavation to a greater depth wherever, in the opinion of the engineer, such greater depth is necessary to secure a suitable foundation. If, on the other hand, a satisfactory foundation is found at a less depth than El. 23, the excavation shall be discontinued at that depth, if directed by the engineer."

The contracts and specifications are contained in printed books covering over 180 pages, and as it would be impossible to reproduce them in full, we have confined ourselves to quoting those which we consider most applicable to this controversy.

The work on the substructure was begun on June 29, 1908, and the whole building completed August 24, 1911, and under date of August 25 and September 11, 1911, the architect and the engineer respectively certified to the commission that the number of days the contractor was in default under the contracts was 144 1/4 working days, at $35 per day, and therefore subject to damages of $5,083.75. The amount of money certified to be due under the contracts, less $5,083.75, was paid over to the contractor.

Receivers were appointed for the Noel Construction Company, and this action was commenced by them on the 6th day of January, 1916, for the recovery of the amount retained as damages for failure to complete the work within the specified 420 working days, for extra work performed, damages incurred by the company through interference with the work and for the recovery of $853.20 charged against the contractor for insuring the building after it had been accepted by the commission. The last item is conceded by the city to have been charged in error against the contractor and should be allowed to the plaintiff.

The trial court held that neither the certificate of the chief engineer nor the certificate of the architect was "technically a conclusive determination of the number of working days in which the Noel Construction Company was in default in completing the work to be done under the respective contracts in evidence," and under a prayer of its own left to the jury to determine whether the Noel Construction Company finished the contracts under or beyond the number of days limited by the contract. But also held that they were not entitled to recover for other claims other than the insurance, which was conceded.

From the ruling of the court, upon the prayers, in holding that the certificates of the engineer and architect as to the number of days in default were not binding and conclusive upon the contractor, the city excepted, and that question constitutes its appeal.

At this date it cannot be questioned what is the effect of a provision in a contract expressly leaving to a third party the determination of questions such as were left in these contracts to the determination of the engineer and the architect. The rulings of this state and the courts of all other states in the Union, with the exception of Indiana, are uniform as to the effect of such a provision as in these contracts; that the decision of such person shall be final and conclusive upon parties to the contract, provided the decision concerns matters within the scope of the submission, and is not subject to review by the courts,...