City of Baltimore v. Maryland Pavement Co.

• Decision Date: 13 March 1917
• Docket Number: 39.
• Citation: 100 A. 770,130 Md. 454
• Parties: MAYOR AND CITY COUNCIL OF BALTIMORE v. MARYLAND PAVEMENT CO. et al.
• Court: Maryland Court of Appeals

100 A. 770

130 Md. 454

MAYOR AND CITY COUNCIL OF BALTIMORE v. MARYLAND PAVEMENT CO. et al.

No. 39.

Court of Appeals of Maryland

March 13, 1917

Appeal from Baltimore Court of Common Pleas; H. Arthur Stump, Judge.

"To be officially reported."

Suit by Mayor and City Council of Baltimore against the Maryland Pavement Company and another. Judgment on demurrer for defendants, and plaintiffs appeal. Reversed, and new trial ordered.

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

Edw. J Colgan, Jr., Asst. City Sol., of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellants.

Charles F. Harley, of Baltimore, for appellees.

THOMAS J.

This appeal is from a judgment of the court of common pleas of Baltimore city in favor of the defendants on a demurrer to the declaration. The mayor and city council of Baltimore brought suit against the Maryland Pavement Company, a body corporate, and the Title Guaranty & Trust Company of Scranton, Pa., a body corporate-

"for that the defendants signed, sealed, delivered, and became bound by a certain writing obligatory, bearing date the 15th day of February, 1905, to secure the performance of a certain contract and specifications between the defendant the Maryland Pavement Company and the plaintiff, in relation to the grading, curbing, and paving with asphalt blocks Evergreen terrace from the north side of Fulton avenue to the south side of Orem's lane, in accordance with Ordinance No. 174, approved December 17, 1904, copies of which said writing obligatory, contract, and specifications are herewith filed, and are hereby referred to as part hereof. The defendant the Maryland Pavement Company entered upon the performance of said contract and specifications, and graded curbed, and paved the street or terrace aforesaid, but has not fulfilled or performed the terms and provisions of said contract and specifications in respect to the maintenance of said pavement for a period of five years, from its completion and acceptance by the city authorities, although duly notified by the plaintiff of its failure to perform said contract and specifications in that respect. By reason of the failure of said defendant the Maryland Pavement Company to perform the provisions of said contract and specifications in respect to the maintenance of said pavement, the plaintiff was compelled, at its own cost, to expend in repairing said pavement and maintaining the same a large sum of money, to wit, the sum of $819.23, which said sum the said defendant the Maryland Pavement Company has refused, and still refuses to pay to the plaintiff in whole or in part. And the plaintiff further says that by reason of the premises and the said breaches of the conditions of said writing obligatory, a right of action has accrued to it to have and demand the sum of $819.23 from the said defendants. And the plaintiff claims $2,000."

The defendants demurred to the declaration, and the court sustained the demurrer. Thereafter the plaintiff filed the following amended declaration, which is designated in the record:

"Amended Declaration. Additional Count. The mayor and city council of Baltimore, a municipal corporation, by S. S. Field, its attorney, sues the Maryland Pavement Company, a body corporate, and the Title Guaranty & Trust Company of Scranton, Pa., a body corporate. For that the defendants the said the Maryland Pavement Company and the Title Guaranty & Trust Company of Scranton, Pa., a body corporate, by their certain writing obligatory, signed, sealed and delivered, and bearing date the 15th day of February, 1905, and which is the same said writing obligatory heretofore filed by the plaintiff in this cause, acknowledged themselves to be justly indebted to the mayor and city council of Baltimore in the sum of $14,110 to the payment of which they bound themselves, their and each of their heirs, executors, and administrators, successors, and assigns, jointly and severally to secure the performance of a certain contract and specifications between the defendant the said the Maryland Pavement Company and the plaintiff, for furnishing all labor and material and doing all the work necessary to grade, curb, and pave, with asphalt blocks, Evergreen terrace, from the north side of Fulton avenue to the south side of Orem's lane, in accordance with Ordinance No. 174 of the mayor and city council of Baltimore, approved December 17, 1904, and in accordance with a certain contract and specifications attached to said writing obligatory as part thereof, and which have been heretofore filed by the plaintiff in this cause and are herewith referred to as part of this declaration. And the plaintiff in fact says that the said the Maryland Pavement Company entered upon the performance of said contract and specifications, and did work and furnished materials in connection therewith, but did not do said work and furnish said materials in accordance with the terms of said contract and specifications, but, on the contrary, the said the Maryland Pavement Company did defective work and furnished defective, inferior, and faulty materials, so that said work so done and said materials so furnished did not, in fact, conform to the character and standard of work and materials contemplated by and provided for in said contract and specifications. And for that by the doing of such defective work and the furnishing of such defective, inferior, and faulty materials, the said work, so done, fell into a state of dangerous disrepair, which the said the Maryland Pavement Company expressly refused to make good and restore, although duly notified by the plaintiff so to do, and the plaintiff was compelled in repairing said work, and in restoring the same, to expend a large sum of money, to wit, $819.23, which said sum, the said the Maryland Pavement Company has refused and still refuses to pay the plaintiff in whole or in part. And the plaintiff further says that by reason of the premises and the said breaches of the said writing obligatory, a right of action has accrued to it to have and demand the sum of $819.23 from the said defendants. And the plaintiff claims $2,000."

The defendants also demurred to the amended declaration, and, the court having sustained the demurrer, a judgment was entered in favor of the defendants, from which the plaintiff has appealed.

The first question presented by the record is whether the appeal brings up for review the ruling of the court below on the demurrer to the original declaration, and the answer to that question must depend upon whether the plaintiff must be held to have abandoned and withdrawn his original declaration from the case. It is said in 2 Poe's P. & P. § 189:

"Where the application is for leave to plead de novo, and under leave granted, new pleas are filed, the former pleas will be held to be withdrawn. But where leave is granted to amend the declaration by filing additional counts, or to amend the pleas by filing additional pleas, the original pleadings will not be thereby withdrawn."

In the case of Ellinger v. Baltimore City, 90 Md. 696, 45 A. 884, Judge Jones, speaking for this court, said:

"The amendment by way of the 'amended declaration' was pleading de novo which withdraws from the case the pleadings for which the new pleading is substituted, according to repeated decisions of this court."

In that case, however, the learned judge, in reviewing what had been done, as the basis of the conclusion stated above, said:

"From what is disclosed by the record the plaintiffs must be held to have abandoned their case as made by the original narr. and to have waived their right of appeal, or rather not to have put themselves in a position to appeal from the adverse ruling of the court upon the demurrer thereto. They did not submit to judgment upon the demurrer, nor did they simply amend the original narr. as to the matter which the court had found obnoxious to the demurrer, nor did they attempt to incorporate new matter into the original pleading by way of adding additional counts thereto, but proceeded upon the leave of the court which accompanied its ruling, here in question, to file an entirely new declaration complete in itself," etc.

In the case at bar the amendment made by the plaintiff was filed as an "additional count" to the original declaration. It was not filed in...