Duck v. Quality Custom Homes, Inc.

• Decision Date: 01 June 1966
• Docket Number: No. 361,361
• Citation: 242 Md. 609,220 A.2d 143
• Parties: Robert E. DUCK et ux. v. QUALITY CUSTOM HOMES, INC.
• Court: Maryland Court of Appeals

Page 609

242 Md. 609

220 A.2d 143

Robert E. DUCK et ux. v. QUALITY CUSTOM HOMES, INC.

No. 361.

Court of Appeals of Maryland.

June 1, 1966.

John T. Bell, Rockville (Charles W. Bell and Bell & Bell, Rockville, on the brief), for appellants.

James F. FitzGerald, Silver Spring (Floyd Willis, III, and FitzGerald & Holmes, Silver Spring, on the brief), for appellee.

Before HAMMOND, HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

OPPENHEIMER, Judge.

Quality Custom Homes, Inc. (Quality) filed an action in assumpsit based on the common counts against Robert E. Duck and Barbara D. Duck, his wife, (the Ducks). After Quality filed a bill of particulars, in response to the Ducks' demand, the Ducks filed a general issue plea. The case was heard by Judge Shure, sitting without a jury. At the close of Quality's evidence, the Ducks requested a directed verdict ¹ which was denied. They elected not to offer evidence, and Judge Shure found for Quality. After denying the Ducks' motion for a judgment n. o. v. or a new trial, Judge Shure entered a judgment for Quality against the Ducks for $4055.12, the total amount claimed. The Ducks appealed.

The Ducks contend that there was a material variance between the pleadings and the proof, that Quality failed to meet its burden of proof, that the burden was not met as to Barbara Duck, and that the alleged agreement violated the Statute of Frauds. The Ducks also contend that the trial court erred in not receiving into evidence's a 'purported real estate contract' it offered through one of Quality's witnesses.

Quality's bill of particulars sets up a claim, still based on the common counts, for the net amount due it by the Ducks on the cost of a house and a particular lot. At the hearing, Carl Monje, president of Quality, testified that in the summer of 1962 Quality was engaged in the business of building 'package homes' and that Robert Duck was a construction foreman employed by the firm. Monje and Robert Duck discussed the construction of a house for the Ducks on a lot which Quality had the right to purchase. Quality and Robert Duck entered into an agreement in which Quality assigned its purchase option to the Ducks and Robert Duck paid Quality $500, the amount that Quality had deposited on the lot. Robert Duck paid $1250 to the grantor and borrowed $1500 from Quality for the final payment on the lot. Monje testified that the $1500 had not been repaid. The agreement between Quality and Robert Duck concerning the purchase of the lot was admitted into evidence. The lot was the same lot referred to in the bill of particulars, and the agreement recited that the lot was to be 'conveyed in the name of Robert E. Duck and Barbara D. Duck.' Quality also agreed to build a 'Lesco Home' at cost plus ten percent above all labor and materials purchased locally; Monje stated that this arrangement was open to any employee of Quality. On September 11, 1962 Quality entered into a 'turnkey authorization' which was signed by Monje, on behalf of Quality, and by Robert Duck. The agreement stated that Robert and Barbara Duck authorized Quality to enter into a formal contract to build a 'Lesco Home' and that the owner and 'undersigned' agreed to purchase the home at $23,000. On cross-examination, Monje testified that the purpose of the agreement was to order plans and that Quality was an agent of Lesco in the sense that it obtained package homes from Lesco.

Monje testified that the 'package' (home) for the Ducks arrived, the Ducks procured a construction loan in their joint names, the home was constructed under Robert Duck's supervision, and the completed home was occupied by Mr. and Mrs. Duck in the spring of 1963. Monje then stated that he and Robert Duck computed the costs of the home, and Monje explained the net amount due Quality on the entire transaction. (The Ducks were credited with the proceeds of the construction loan, for Robert's fee in supervision, for their expenses in correcting defects and for one-half of the discount the supplier, Lesco, had given Quality on the package). This explanation was not objected to, and it remained uncontradicted.

The Ducks contend that there was a material variance in that Quality failed to prove that it alleged in its pleadings and bill of particulars-the cost of a home and lot less certain credits. A bill of particulars becomes a part of the pleadings and is binding on the pleader, Maryland Rule 346 e, 2 Poe, Pleading & Practice § 116 (5th ed 1925). While at one time the proof had to follow strictly the allegation, Bryan v. Coursey, 3 Md. 61, 66 (1852), now all that is required is substantial agreement between the pleadings and proof and there is no material variance unless there is disagreement in a matter essential to the claim. Challenge Clothes Corp. v. Polski, 181 Md. 590, 593, 31 A.2d 309 (1943) and cases therein cited; 1 Poe, supra, § 712. In Norris v. Graham, 33 Md. 56 (1870), cited by the Ducks, the court found there would be a material variance if the plaintiff were allowed to prove the defendant liable on the underlying contract rather than as a guarantor as alleged. See also Norris v. Ald New York, Inc., 227 Md. 110, 175 A.2d 749 (1961), wherein the plaintiff was restricted to proof of a writing recited in his bill of particulars. Here Monje's testimony as to the computation of costs and the credits support the pleadings, which based the claim, not on a contract, but only on the common counts. Even if there is a special contract and the plaintiff has performed, he may declare on the common counts. Bright v. Ganas, 171 Md. 493, 497, 189 A. 427, 109 A.L.R. 467 (1937). We find no material variance.

The Ducks contend that Quality failed to meet its burden of proof because in an action for the purchase money of land sold by it, it had to show good title or, if the action were for construction monies, there was lack of evidence as to the cost of labor, materials and other particulars of such a claim. This contention fails because it misconstrues the nature of the pleadings. Quality sued on the common counts in assumpsit. There can be recovery on the common counts where the plaintiff has performed his part of the contract and nothing remains but to collect what is due. Precision Dev. Co. v. Fast Bearing Co., 183 Md. 399, 407, 37 A.2d 905 (1944) and Conservation Co. v. Stimpson, 136 Md. 314, 317, 110 A. 495 (1920). Monje's testimony for Quality as to the unpaid loan, the agreement to construct a 'Lesco Home', the occupancy of the Ducks, and as to the amount still due from the Ducks clearly establishes a prima facie case under the common counts. Quality sustained its...