Davison Chemical Co. v. Andrew Miller Co.

• Decision Date: 19 December 1913
• Citation: 89 A. 401,122 Md. 134
• Parties: DAVISON CHEMICAL CO. v. ANDREW MILLER CO.
• Court: Maryland Court of Appeals

89 A. 401

122 Md. 134

DAVISON CHEMICAL CO. v. ANDREW MILLER CO.

Court of Appeals of Maryland

December 19, 1913

Appeal from Superior Court of Baltimore City; Walter I. Dawkins Judge.

"To be officially reported."

Action by the Andrew Miller Company, a corporation, against the Davison Chemical Company, a corporation. From judgment for plaintiff, defendant appeals. Affirmed.

Frederick C. Colston and Charles McH. Howard, both of Baltimore, for appellant. George Washington Williams and John Holt Richardson, both of Baltimore, for appellee.

PATTISON J.

The appellee company in this case was employed by the appellant company to build for it a bulkhead along a part of the water front of its property at Curtis Bay, for which the appellee was to receive the net cost of the labor and material used in and upon said bulkhead, plus 10 per cent. The work was done and materials furnished, and it is to recover compensation therefor that the suit in this case was instituted.

In addition to the general issue the defendant pleaded set-off to the plaintiff's declaration. The plea of set-off contained a special count, in which it was stated, in substance, that the appellant under a contract with the appellee, made on the 7th day of July, 1910, had employed the appellee company to construct for it "about 365 feet of bulkhead foundation" upon the water front of its property, in accordance with the terms of said contract which were fully set out in the plea, for the sum of $12.23 per lineal foot; that the work was commenced under the agreement, and was completed before the construction of the part of the bulkhead mentioned in the declaration, to recover for the building of which the plaintiff's suit was brought, and before the contract therefor was executed, but that the construction was defective, and not in accordance with the terms of said agreement; that by reason of such defective construction and as a result thereof, the defendant was compelled to repair and rebuild the said bulkhead at its own expense, amounting to the sum of $2,349.86.

The plaintiff joined issue on the general issue plea, and demurred to the plea of set-off, and, upon the demurrer being overruled, the plaintiff replied that it was not indebted, and that it did not promise, as alleged, upon which issue was joined.

A number of witnesses were offered by the plaintiff, who testified that the work was done and the materials furnished as set forth in an itemized statement or account filed with the plaintiff's narr., and in accordance with the terms of the contract or agreement made between the plaintiff and defendant by which the plaintiff was to build the bulkhead and the defendant was to pay the plaintiff therefor the net cost of labor and material, plus a commission or compensation of 10 per cent.

The defendant put in evidence the contract mentioned in his plea of set-off for the work previously done by the plaintiff, and for which it had been fully paid under the terms of said contract, and offered evidence showing the manner in which the work under said contract was done, and describing the defects therein complained of. The defendant was then permitted, subject to exceptions, to show the cost of the material and labor expended by it in the reconstruction of said bulkhead, but later, upon motion of the plaintiff, the court struck out, as the record discloses, all of the testimony in reference to the rebuilding of said bulkhead and the cost of the same, because, as contended by the plaintiff, the testimony showed that the bulkhead as reconstructed differed from the one which was to be constructed by the plaintiff under its contract with the defendant. Testimony was then offered by the defendant tending to show that, although the reconstruction of the bulkhead in some respects differed from its construction under the terms of the contract, nevertheless the cost and expense of so reconstructing it was less than it would have been had it been reconstructed in accordance with the terms of the contract, and again offered evidence showing the cost of such reconstruction, but the court adhered to its former ruling, and the defendant was not permitted to prove the cost of such reconstruction.

The defendant then asked leave of court to withdraw its plea of set-off that it might bring an independent action thereon, and to amend its pleadings by striking out its third plea (the plea of set-off), which leave was granted by the court, and the defendant's pleas were then amended by striking out the third plea.

No further testimony was taken, and the plaintiff asked the court to instruct the jury that "if from the evidence they find that the plaintiff did the work and furnished the material as set out and mentioned in the evidence, then their verdict must be for the plaintiff. Provided, they further find from the evidence that the plaintiff is not indebted unto the defendant in a greater amount than that found by them from the evidence to be due the plaintiff."

The defendant resisted the granting of the prayer, its objection being specially directed "to the latter part of said prayer, submitting to the jury any question as to whether the plaintiff was indebted to the defendant, upon the ground that its claim of set-off having...