Denmead v. Coburn

• Decision Date: 19 January 1860
• Citation: 15 Md. 29
• Parties: ADAM DENMEAD v. THOMAS COBURN.
• Court: Maryland Court of Appeals

15 Md. 29

ADAM DENMEAD v. THOMAS COBURN.

Court of Appeals of Maryland.

January 19, 1860

The defendant had a mill-race flowing under a street, in the city of Baltimore, which the city authorities determined to fill up and extend, so that it became necessary this race should be arched over under the bed of the street, and the proper officer of the city made a contract with the plaintiff to build the arch, for a specified sum. The same officer afterwards entered into an arrangement, with the defendant by which the sum to be paid the plaintiff for building the arch should be allowed the defendant, he agreeing to have an arch of a superior character built, and to be liable for any additional sum it might cost, and the plaintiff was to do the work. The plaintiff and defendant then entered into a written contract, by which the former agreed to build the arch as therein specified, for the latter, at a certain rate. Whilst the arch was in process of construction a contractor with the city was engaged in filling up the street, and over him the defendant had no control, he being subject only to the city commissioner. Before the arch was completed that portion of it which was done, fell in, either from bad materials and workmanship, or from the manner in which the contractor for filling up the street caused the earth used for that purpose to be " dumped" down against the arch. After notice to the plaintiff that he had not fulfilled his contract, the defendant caused the arch to be rebuilt. The plaintiff then sued the defendant in an action of indebitatus assumpsit, for work and labor in building this arch and for extra work and materials, the declaration containing no special count on the contract. HELD:

1st. That the plaintiff cannot recover in this action for the work done on the arch, there being no evidence that the work contracted for was completed, or of the abandonment of the contract, or of any act of the defendant by which the plaintiff was interfered with in the prosecution of his work.

2nd. That if his work was destroyed by the acts of the contractor for filling up the street, without any fault of the defendant, the plaintiff's remedy, if, under the circumstances, he has any against any party, is against such contractor, or the city, if the contractor was its agent.

3rd. Nor can the plaintiff recover for any extra work, there being no sufficient proof to justify the jury in inferring any assent on the part of the defendant to any such work, or departure from the terms of the contract; the contract bound the plaintiff to build an arch suitable for the purposes intended; and, therefore, imposed upon him the obligation to do all indispensable to that end.

4th. But the plaintiff is entitled to recover the value of any materials belonging to him which were used by the defendant in rebuilding the arch.

Where there is a special contract the plaintiff cannot recover in an action of indebitatus assumpsit for work and labor, unless the work under the contract was fully performed and accepted by the defendant, or the contract was abandoned by mutual consent, or the fulfilment of it prevented by some act of the defendant.

A prayer " that the plaintiff is entitled to recover such sum as the jury shall believe from the evidence to be the value of the materials belonging to him and used by the defendant in the new arch," is erroneous, because it assumes the fact that such materials were so used.

APPEAL from the Superior Court of Baltimore city.

Assumpsit brought on the 2nd of March 1854, by the appellee against the appellant. The declaration alleges that the defendant was indebted to the plaintiff in the sum of $963.71, for work and labor done and materials furnished. It also contains counts for goods sold, money had and received upon an account stated, and for sundry matters properly chargeable in account, as by a particular account filed appears. Plea non assumpsit.

Exception. The plaintiff offered in evidence the following written contract, signed by himself and A. and W. Denmead & Son: " Baltimore, November 22nd, 1852. Memorandum made this day between A. & W. Denmead & Son, on the one part and Thomas Coburn of the other part, all of the city of Baltimore, and State of Maryland. Thomas Coburn agrees to put up the stone arch under Eager street and across our race, the side walls to be three feet thick, and arch to be span sixteen feet semi-arch, the side wall to be laid dry and the arch with good mortar, for six dollars per foot running measure. A. and W. Denmead & Son to do all the digging, and Thomas Coburn to furnish all the labor and materials for said arch, including the braces for centering, the arch to be well backed up. Thomas Coburn also agrees to give A. and W. Denmead & Son, one dollar per perch for all the old stone taken out of the race, which Thomas Coburn agrees is thirty one perches."

The bill of particulars consists of two items, 1st, 124 feet length of arch built by the plaintiff at $6.50 per foot, making $806. 2nd, " 136 70/100 perches stone, in one foot high of abutments, and in two wing walls at $2.25 per perch," making $307.71. It then allows a credit of $150, leaving due $963.71. The other evidence in the case is sufficiently stated in the opinion of this court. Upon all the evidence the plaintiff asked the following instructions to the jury.

1st. If the jury shall believe, from the evidence, that the arch built by the plaintiff fell in consequence of the manner in which the street was filled in above it, and not because of any defect of materials or workmanship, then the plaintiff is entitled to recover the sum stipulated in the contract.

2nd. If the jury shall believe from the evidence that the increased height of the abutments, and the wing-walls, not provided for in the contract, were built for the advantage of the defendants, and that they knew of the same while the work was being done, and made no objection thereto, the plaintiff is then entitled to recover such sum as the jury shall believe to be reasonable compensation for such extra work.

3rd. That the plaintiff is entitled to recover such sum as the jury shall believe, from the evidence, to be the value of the materials belonging to him and used by the defendants in the new arch, less such payment as has been made to him by the defendants on account.

The defendants asked the following instructions:

1st. That the second item in the bill of particulars submitted by the plaintiff, is not embraced in the written contract offered in evidence by the plaintiff.

2nd. If the jury shall be satisfied, from the evidence, that the whole work stipulated for in the written contract offered in evidence by the plaintiff was not completed by the plaintiff, then the plaintiff is not entitled to recover in this action.

3rd. If the jury shall find from the evidence that the stone arch and side walls, mentioned in said contract, were put up by the plaintiff, but that said arch, as stated in the evidence, fell down in part, and for the residue had to be taken down, then the plaintiff is not entitled to recover, if the jury shall be satisfied from the proof that the partial falling of said arch, and the taking down of the rest of it, were, to any extent, caused by defective material in said arch or side walls, or the defective workmanship of either, or for want of the said arch being well backed up according to said contract.

4th. If the jury shall be satisfied from the evidence that the stone arch and side walls, mentioned in said contract, were put up by the plaintiff, and that the said arch fell, in part, and for the residue had to be taken down, through no defect in the plaintiff's work, or materials, but because of the injury to the same occasioned by the manner in which, according to the plaintiff's evidence, the earth was dumped on said arch in the construction of Eager street, then the plaintiff is not entitled to recover; if the jury shall further find from the evidence, that such injury was done while said work was in course of construction and before it was completed.

The court (LEE, J.) granted all the plaintiff's prayers and all of the defendant's except the fourth, which was refused, and to the granting of the plaintiff's prayers and the refusal of his fourth prayer, the defendant excepted. The verdict was in favor of the plaintiff for $1073.72, and from the judgment thereon the defendant appealed.

The cause was argued before LE GRAND, C. J., ECCLESTON and TUCK, J.

Bernard Carter and J. M. Campbell, for the appellant, argued:

1st. The plaintiff's first prayer should not have been granted, because it assumes the existence and execution of the contract, according to which the jury were directed to ascertain the amount due to the plaintiff, and also that the arch was in fact built, instead of leaving the jury to find these facts. 4 Md. Rep., 252, Balto. & Susq. R. R. Co. vs. Woodruff. Ibid., 476, Ellicott vs. Peterson. 3 Md. Rep., 162, Gaither vs. Martin.

2nd. The plaintiff having declared in indebitatus assumpsit, for work and labor, and on the common counts and not on the special contract offered in evidence, cannot recover in this action, unless the evidence shows (which it altogether and entirely fails to show) either, 1st, that the contract has been fully executed and performed, and the work therein contracted for completed; or, 2nd, that a portion of the work having been performed, the contract was abandoned by mutual consent, or its completion prevented by some act of the defendant. 16 Wend., 632, Mead vs. Degolyer. 7 Md. Rep., 298, Balto. & Ohio R. R. Co. vs. Resley. 14 Johns., 326, Clark vs. Smith. 4 Md. Rep., 491, Ellicott vs. Peterson. 4 Cowen, 564, Jewell vs. Schroeppel. 19 Pick., 496, Baker vs. Corey. 2 Md....