Eastover Co. v. All Metal Fabricators, Inc.

• Decision Date: 16 February 1960
• Docket Number: No. 115,115
• Citation: 221 Md. 428,158 A.2d 89
• Parties: EASTOVER COMPANY, Inc., et al., and Glens Falls Insurance Co. v. ALL METAL FABRICATORS, INC.
• Court: Maryland Court of Appeals

Page 428

221 Md. 428

158 A.2d 89

EASTOVER COMPANY, Inc., et al., and Glens Falls Insurance Co. v. ALL METAL FABRICATORS, INC.

No. 115.

Court of Appeals of Maryland.

Feb. 16, 1960.

Jo V. Morgan, Jr., Washington, D. C., for appellants.

No appearance for appellee.

Submitted to BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

The appellee, All Metal Fabricators, Inc. (All Metal) brought two suits, which were consolidated for trial and on appeal, one against the appellant, Eastover Company, Inc. and the other against the appellant, Eastover Addition, Inc., to enforce claims for mechanics' lines. These claims were for labor and for materials furnished in the construction of buildings in a shopping center in Prince George's County owned by the Eastover Company, Inc. and of a restaurant on an adjoining tract owned by Eastover Addition, Inc. Both of these appellants (hereinafter sometimes referred to collectively as 'Eastover') are affiliated with each other and with A. Lloyd Goode Contracting Company (Goode), a North Carolina corporation. The other appellant in each case is the surety company which underwrote the bonds to release mechanics' liens on the Eastover properties. The decrees of the Circuit Court were in favor of the claimant in each case--in the first case, in the amount of the lien claimed, less one unallowable item of $50, for $3,106.95, with interest and costs, and in the second, in the full amount of the lien claimed, for $111.20, with interest and costs.

Eastover employed Goode as the general contractor for the construction of the shopping center and restaurant, and Goode employed Donald W. Bower, Inc. (Bower, Inc.) as a sub-contractor for plumbing, heating and ventilating work. Bower, Inc., in turn employed All Metal as a further sub-contractor to furnish and install metal duct work for heating or ventilation in some of the shopping center buildings, one of which was to be used as a food market and another as a bank, and also in the adjacent restaurant. The agreement between Bower, Inc. and All Metal was verbal. It called for material to be furnished at cost plus 25% and labor at $5 an hour. Bower, Inc. was to make sufficient payments to All Metal as the work progressed to enable All Metal to meet its payroll. Bower, Inc. did make some payments, but frequently seems to have run behind. All Metal's bills were rendered on a weekly basis for labor and materials, and there was never any dispute as to the correctness of All Metal's charges for work and materials. (The $50 item disallowed by the Circuit Court represented the value of a drill broken in the course of the work.)

All Metal's work started in May, 1955 and continued until early September of that year. Mr. Cooper, the President of All Metal, testified that at that time Bower, Inc. owed All Metal about $6,000 and All Metal was in need of funds to meet its payroll. His efforts to collect from Bower, Inc. resulted in Mr. Bower, the President of that corporation, leaving with his secretary a check for delivery to Mr. Cooper. This check was payable to All Metal, was in the amount of $2,283.70, and bore a typed legend on the back just above the place for endorsement reading as follows: 'In Receipt of this Check Acknowledge Payment in Full to All Metal Fabricators, Inc.' Mr. Cooper told Mr. Bower's secretary that he would not accept the check in full payment. Nevertheless, he took the check and deposited it, with his endorsement and that of the other stockholder in All Metal, in the bank account of All Metal, and that corporation used the funds. Subsequent protests to Bower were to no avail. He said that he could not pay more without using his own funds, not simply those of his corporations.

The above check and its endorsement constitute the basis for the first ground for this appeal--accord and satisfaction. Other points urged by the appellants are: alleged failure of the record to support All Metal's claims; allegedly improper admission of evidence; and the refusal of a continuance in order to obtain the testimony of Mr. Bowers.

We think that the Chancellor correctly rejected the defense of accord and satisfaction. The evidence supported his finding that the amount due by Bower, Inc. to All Metal was liquidated and undisputed. It was the product of a simple arithmetical calculation based upon costs of material and hours of labor, less credits for amounts paid. There was nothing to show any dispute as to the fact that the materials charged for had been furnished or as to the prices charged therefor, or as to the number of hours of labor performed. On the contrary, Mr. Cooper's testimony was clear to the effect that there had been no dispute as to the correctness of any of the bills.

Since there was no dispute as to prices of material or hours of labor and since the contract itself provided the basis of computation to be applied to those undisputed facts, we think that the claim was sufficiently certain to constitute a liquidated claim. See Wilson v. Wilson, 8 Gill 192; Dirickson v. Showell, 79 Md. 49, 52-53, 28 A. 896; Williams v. Jones, 38 Md. 555; all attachment cases. See also 6 Corbin, Contracts, § 1290. 1 Williston, Contracts (3rd Ed.) § 128 defines an unliquidated claim as 'one, the amount of which has not been fixed by agreement or cannot be exactly determined by the application of rules of arithmetic or of law.' Cf. Blick v. Mercantile Trust & Deposit Co., 113 Md. 487, 491, 77 A. 844, 846, in which a number of cases are reviewed and in which the test of whether or not a claim is liquidated so that an attachment will lie is thus stated: 'In each case the question is whether the contract itself fixes the amount or furnishes a standard by which the amount may be certainly determined. If it does, the attachment will lie. If it does not, it will not lie.' (In the Blick case that test was found not to have been met.) Cf. also 2 Poe, Pleading and Practice (Tiffany's Ed.) § 415, dealing with a similar problem under the Speedy Judgment Acts. See also Frush v. Brooks, 204 Md. 315, 104 A.2d 624, with regard to the sufficiency of an affidavit in support of a motion for a summary judgment under Rule 610 of the Maryland Rules, which has superseded the former Speedy Judgment Acts.

The claim being liquidated and undisputed, it was not discharged by the payment of a lesser amount than that due. As was said in Geiser v. Kershner, 4 Gill & J. 305, 310, 'The general rule is well settled, that the payment of a less sum of money than the whole debt, without a release, is no satisfaction of the plaintiff's claim. A mere agreement to accept less than the real debt, would be nudum pactum.' This rule has been repeatedly followed in this State. Hardey v. Coe, 5 Gill 189, 196-197; Jones v. Ricketts, 7 Md. 108, 116; Campbell v. Booth, 8 Md. 107, 117 (and see the converse situation at a later stage of this litigation, Booth v. Campbell, 15 Md. 569, 575-576); Barber v. State, to Use of Haller, 24 Md. 383, 390 (rule stated, not found applicable); Oberndorff v. Union Bank, 31 Md. 126, 132; Maddux v. Bevan, 39 Md. 485, 499 (rule stated, but other consideration found to exist); Loney v. Bailey, 43 Md. 10, 22; Snowden v. Reid, 67 Md. 130, 136, 8 A. 661; 10 A. 175; Emmittsburg R. Co. v. Donoghue, 67 Md. 383, 10 A. 233; Commercial & Farmers National Bank of Baltimore v. McCormick, 97 Md. 703, 55 A. 439. And the rule applies notwithstanding the form of endorsement purporting to acknowledge payment in full, which Bower, Inc. placed on the check in question. See particularly Prudential Insurance Co. of America v. Cottingham, 103 Md. 319, 63 A. 359; and Realty & Construction Corporation v. Bresnan, 137 Md. 276, 280, 112 A. 182. Cf. Mercantile Trust & Deposit Co. v. Rode, 137 Md. 362, 376-378, 112 A. 574. On the general rule, see also 1 Williston, Contracts (3rd Ed.) § 120, and 6 Corbin, Contracts, § 1281.

The situation in the instant case is quite unlike that in Scheffenacker v. Hoopes, 113 Md. 111, 115, 77 A. 130, 29 L.R.A.,N.S., 205, in which there was a dispute as to the amount due, or, in Stockton v. Frey, 4 Gill 406, in which there was a tort claim for an unliquidated amount. These cases, though cited by the appellants, clearly do not support them on the facts before us. Nor does the Emmittsburg R. Co. case, supra, which they also cite. It recognizes the rule which was later applied in the Scheffenacker case, but found it inapplicable; and the actual result was to follow Jones v. Ricketts, supra.

The appellants next complain that the evidence submitted by All Metal was not sufficient to prove its claim. The appellants characterize the evidence that was introduced as copies of bills or invoices sent to Bower, Inc., which evidence was not supported by the original records of All Metal. The evidence actually introduced, with two exceptions, consisted of printed forms entitled 'Foreman's Copy' and 'Mechanic's Copy'. These would appear to be the records kept by the company to record the cost of labor and material on a particular building or portion of a job, the number of hours worked and...