Continental Masonry Co., Inc. v. Verdel Const. Co., Inc.

• Decision Date: 24 February 1977
• Docket Number: No. 99,99
• Citation: 279 Md. 476,369 A.2d 566
• Parties: CONTINENTAL MASONRY CO., INC. v. VERDEL CONSTRUCTION COMPANY, INC.
• Court: Maryland Court of Appeals

Page 476

279 Md. 476

369 A.2d 566

CONTINENTAL MASONRY CO., INC. v. VERDEL CONSTRUCTION COMPANY, INC.

No. 99.

Court of Appeals of Maryland.

Feb. 24, 1977.

Michael I. Gordon, Baltimore (Smullian & Gordon and Allen L. Fox, Baltimore, on the brief), for appellant.

M. Natalie McSherry, Baltimore (W. Hamilton Whiteford, Nevett Steele, Jr., Robert M. Wright and Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

DIGGES, Judge.

The appellant in this action in assumpsit seeks a determination by this Court that a general contractor ordinarily has, unless a contrary intent is manifest in its subcontract agreements, an implied obligation to take all reasonable steps necessary to insure that each subcontractor is not delayed in its performance by actions of omission or commission on the part of other subcontractors. We do not decide this question, however, since we conclude that even if such a claim may be maintained in this State, ¹ the appellant's declaration fails to allege facts necessary to constitute it.

Plaintiff-appellant Continental Masonry Co., Inc., sought damages in the Court of Common Pleas of Baltimore City for breach of an 'implied obligation' alleged to be a part of its agreement to perform masonry subcontract work for defendant-appellee Verdel Construction Co., Inc., the general contractor for the Science-Allied Health Building at Essex Community College in Baltimore County. The trial court sustained Verdel's demurrer to the first count of Continental's third amended declaration, and entered final judgment against it pursuant to Maryland Rule 605. We granted certiorari on our own motion before the Court of Special Appeals considered the matter, and now affirm the trial court's sustaining of the demurrer as to that count without further leave to amend.

Although the third amended declaration contains three counts, only the first is important here since the other two make no claim against the appellee. This first count in relevant part alleges:

That on or about April 10, 1973, the Plaintiff, as subcontractor, entered into (an) Agreement with Defendant, Verdel Construction Company, Inc., to perform the masonry subcontract work required for the construction of the Science-Allied Health Building of the Essex Community College in Baltimore County, Maryland, at and for the price of Three Hundred Thirty-Five Thousand, Two Hundred Dollars ($335,200.00).

That in considering (the) Contract, Plaintiff relied upon the progrees schedule promulgated by Defendant, Verdel Construction Company, Inc., and the completion date of March 23, 1974, as set forth in Article 12.5 of the Supplementary Instructions to Bidders (Page 2) included in the document heretofore filed in this action as a supplement to the Answer to Demand for Written Instruments requested by Defendant, Dietrich Brothers, Incorporated, with which said date and time period all subcontractors were to coordinate the time of their work. The Agreement . . . of April 10, 1973, hereinabove referred to, provided that if the subcontractor failed to promptly and diligently prosecute his work, the general contractor, the Defendant, had the right to terminate the Contract and replace the subcontractor.

That as work progressed, the structural steel subcontractors, The Prosser Company, Inc., and Dietrich Brothers, Incorporated, failed to perform adequately and the Defendant, Verdel Construction Company, Inc., failed to take action to require said subcontractors to perform adequately, as a result of which there was a general job slowdown, thereby greatly extending the period of construction.

That as a result of said extended period of construction, Plaintiff was required to leave scaffolding in place and to incur severely increased costs for materials, labor and to pay interest on borrowed money to sustain the job, as a result of which the Plaintiff suffered a monetary loss well in excess of One Hundred Thousand Dollars ($100,000.00).

That the Defendant owed to the Plaintiff an implied obligation not to delay the performance of Plaintiff's work and was responsible to take all reasonable steps to insure the work proceeded without undue delay, but in violation of that implied obligation, defendant did not take adequate or reasonable steps to insure that the work proceeded without delay and, in fact, permitted the same to be delayed for an extended period of time; that the failure to act on the part of the Defendant was the proximate cause of said delay, in that said Defendant permitted the structural steel subcontractors, who were under his control and direction, to delay in the performance of their responsibilities to properly man and supply the job in violation of the terms of their subcontracts, the said Contracts between Plaintiff and Defendant, Verdel Construction Company, Inc., not exonerating said Defendant in such instances.

WHEREFORE, this suit is brought and Plaintiff claims Two Hundred Thousand Dollars ($200,000.00) damages.

Maryland Rule 301 c requires that declarations contain ' a clear statement of the facts necessary to constitute a cause of action . . .' (emphasis supplied). In this State in order for a declaration in assumpsit to withstand a demurrer attack it must of necessity allege with certainty and definiteness facts showing a contractual obligation owned by the defendant to the plaintiff and a breach of that obligation by the defendant. In considering the sufficiency of the narr now before us, we should keep in mind that any ambiguity or...