Fishman Const. Co. v. Hansen, 252

• Decision Date: 28 April 1965
• Docket Number: No. 252,252
• Parties: FISHMAN CONSTRUCTION CO., Inc., et al. v. Wilbur R. HANSEN, etc.
• Court: Maryland Court of Appeals

Page 418

238 Md. 418

209 A.2d 605

FISHMAN CONSTRUCTION CO., Inc., et al. v. Wilbur R. HANSEN, etc.

No. 252.

Court of Appeals of Maryland.

April 28, 1965.

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

Henry J. Noyes, Rockville, for appellee.

Before PRESCOTT, C. J., and HORNEY, MARBURY, SYBERT, and BARNES, JJ.

HORNEY, Judge.

In this suit for the balance due a subcontractor by a general contractor and its surety for work done and materials furnished on a school construction project, the principal question on appeal is whether the lower court erred in granting the motion of the subcontractor (Wilbur R. Hansen, t/a Hansen Plumbing and Heating Company) for summary judgment against the general contractor and its surety (Fishman Construction Company, Inc., and Security Insurance Company of New Haven, Connecticut). Secondary questions concern the failure of the subcontractor to comply with the subcontract with respect to claims for extras and as to the form of the affidavit prescribed by Maryland Rule 610 b.

Under an agreement made in March 1962, the subcontractor agreed to furnish all materials and perform all work in connection with the plumbing, heating and ventilation of a school building to be constructed in Montgomery County by the general contractor. The standard form of building subcontract, together with such additional insertions as were pertinent to the project, provided, in part, that the work was to be performed 'in accordance with the general conditions of the contract between the owner [Montgomery County Board of Education] and the contractor' so as to reach final completion by February 1, 1963. Payments for materials and work were to be made as the project progressed in the amount of 'ninety percent of the value of the work completed up to the first day of the month, as approved by the architect and the owner's representative.' Other standard provisions stated that the subcontractor agreed to be bound by the terms and general conditions of the agreement between the general contractor and owner and that the general contractor agreed to pay the subcontractor on demand for his work and materials less the retained percentage as the work progressed even though the architect failed to issue a certificate for any cause not the fault of the subcontractor.

While the record does not show when the subcontractor completed his work, the school has been in use since the fall of 1963, and suit for the balance due him was brought in February 1964. The declaration, alleging that the subcontractor had 'fully performed the work under the contract in good and workmanlike manner' and that the general contractor 'failed and refused to pay the balance due,' was accompanied by the motion for summary judgment. The motion and supporting affidavit, to which were attached a copy of the subcontract and a summarized statement of the balance due the plaintiff thereunder, stated that the defendants had no defense to the claim, that no genuine dispute as to a material fact existed between the parties, and that the defendants were 'justly and bona fide' indebted to the plaintiff in the 'full and true sum' of $8947.23, which is slightly less than ten per cent of the original contract price. The defendants, in addition to filing the general issue pleas, filed an affidavit in opposition to the motion for summary judgment asserting in effect that the claim of the plaintiff was premature because the ten per cent due him under the subcontract was not payable until the owner, which had not approved and accepted the school building, had paid the general contractor the balance due it for constructing the school. The defendants, however, did not attach to or file with the opposing affidavit a copy of the contract between the owner and the general contractor, as the rule requires, and there was no explanation for the absence thereof. Furthermore, no claim was made that the subcontractor had not satisfactorily performed and completed his work or that the delay in finally approving and accepting the school building was caused by defects in the work done or materials furnished by the plaintiff.

The lower court, on the authority of Eastern Heavy Constructors v. Fox, 231 Md. 15, 188 A.2d 286 (1963), granted the motion and entered a judgment in favor of the plaintiff against the defendants. Since the propriety of granting a motion for summary judgment under Rule 610 d 1 depends on whether or not the pleadings, exhibits and affidavits show the existence of a genuine dispute as to a material fact, we think the plaintiff was entitled to a judgment as a matter of law on the facts of this case.

The appellants ...