Fairfax Forest Min. & Manuf'o Co. v. Chambers

• Decision Date: 17 March 1892
• Parties: FAIRFAX FOREST MIN. & MANUF'O CO. v. CHAMBERS.
• Court: Maryland Court of Appeals

23 A. 1024

75 Md. 604

FAIRFAX FOREST MIN. & MANUF'O CO.

v. CHAMBERS.

Court of Appeals of Maryland.

March 17, 1892.

Appeal from circuit court, Allegany county.

Assumpsit by Walter Roslyn Chambers against the Fairfax Forest Mining & Manufacturing Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before Miller, Robinson, Irving, Bryan, McSherry, and Fowler, JJ.

R. T. Serumes and W. C. Clayton, for appellant.

Ferdinand Williams and Benj. A. Richmond, for appellee.

ROBINSON, J. The plaintiff, who is a non-resident, sued out a writ of attachment against the defendant, a foreign corporation, and laid it in the hands of the West Virginia Railroad Company as garnishee,—what became of the attachment suit the record does not show. The defendant, however, voluntarily appeared to the short note or summons case, and to the declaration which contained the common money counts it pleaded not indebted, payment, and set-off. The plaintiff, upon the demand of the defendant, filed also the following bill of particulars: The Fairfax Forest Mining and Manufacturing

Co. to Walter Roslyn Chambers, Dr.

To salary agreed upon for services rendered by plaintiff to said company at $250 per month from March, 1888, to Sept. 30th, 1890, inclusive, at $250 per month

$7,750 00

By cash

$ 3 60

By acc'ts in bar

1,252 16

1,255 76

$6,494 24

The case was tried before the judge below, sitting as a jury, and judgment was rendered for the plaintiff for $6,137.84.

The 1st, 2d, 3d, and 4th exceptions present substantially the samequestion. The plaintiff proved he was a native of England, and came to this country in August, 1887; that he was an educated and practical mining engineer; that he traveled on foot, from Philadelphia to Cumberland, through the coal-fields of Pennsylvania and Maryland, for the purpose of taking observations of the geological formations of coal and other minerals in these states; that he stopped at Wilsonia, in West Virginia, on the 27th of February, 1888, and while there met with M. S. Levering, the general manager of the defendant, a corporation chartered in that state, and the owner of a tract of land called "Fairfax Forest;" that he had several interviews with him in regard to the coal lands and other property belonging to the defendant, and which the company, he said, was anxious to develop; that Levering finally, as the agent of the company, agreed to employ the plaintiff, and to pay him $250 per month for his services; that heat once went to work, and continued uninterruptedly in the employment of the company until September, 1890, when it suspended operations, and he was discharged; that the first work he did was the drilling of a test-hole for the purpose of locating a certain seam of coal which was supposed to underlie its property, and that he found the vein of coal at a depth of about 460 feet; that he made a geological classification of the rocks through which the drillhole passed, and made also a vertical section having a geological classification, copies of which he then offered in evidence, having given notice to the defendant to produce the originals which were in its possession, to the admissibility of which the defendant objected, and this constitutes the first exception. The plaintiff then proved that, at the request of Levering, he made a mining and engineering report of the company's property, and the best means of developing it, and that he made out, also, a geological chart, maps, plans, and drawings of its property, copies of which he offered in evidence, having given notice to the defendant to produce the originals, and to the admissibility of this evidence the defendant objected. After further testimony as to the services rendered by him, the plaintiff offered to prove that $250 was but a reasonable compensation for such services, and to this evidence the defendant objected. The plaintiff then offered to prove by James P. Gaffriey, a civil and mining engineer of 20 years' experience, and who had been for 13 years in the employment of the George's Creek Company', that he had examined the plats, charts, and drawings, and work of the plaintiff, and had heard his testimony; that the plats and drawings were skillfully made; and that $250 per month was a reasonable compensation for his services.

The defendant objects to the evidence offered under these several exceptions, on the ground that the bill of particulars shows that the plaintiff's services were rendered under a special agreement between him and the defendant, and that evidence as to what would be a reasonable compensation for such services is not, therefore, admissible. Now, we agree that, where there is a special contract, the plaintiff cannot recover in general assumpsit for services rendered under it, unless the contract has been fully executed, or unless the contract has been abandoned by mutual consent, or unless the fulfillment of it was prevented by some act of the defendant. But it is equally well settled that where there is a special contract for work and labor, not under seal, which has been fully performed on the part of the plaintiff, and nothing remains to be done but the payment of the money by the defendant, the liability of the defendant may be enforced in an action of assumpsit, and in such cases it is not necessary to set out or declare upon the special contract. It is the common practice, however, to join with the common counts a special count on the contract; but the ground upon which the plaintiff recovers under the common counts is not the defendant's special contract or promise, but the implied legal liability of the defendant to pay for services rendered at his request. Here the contract was an executed contract, and the suit was brought to recover for services, only, which the plaintiff had rendered under it. The declaration as filed contained the common money counts, but, at the request of the defendant, a paper purporting to be a bill of particulars was filed by the plaintiff. Neither the nature or character of the services to be rendered were set forth in the bill of particulars, nor did it state whether the agreement was a written or verbal agreement. The proof shows, however,...