Hammaker v. Schleigh
| Citation | 147 A. 790 |
| Decision Date | 21 November 1929 |
| Docket Number | No. 5,5 |
| Parties | HAMMAKER v. SCHLEIGH. |
| Court | Court of Appeals of Maryland |
HAMMAKER
v.
SCHLEIGH.
No. 5
Court of Appeals of Maryland.
Nov. 21, 1929.
[Copyrighted material omitted.]
Appeal from Circuit Court, Allegany County; Albert A. Doub, Judge.
Action by C. Frank Schleigh against George W. Hammaker. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Argued before BOND, C. J., and PATTISON, URNEB, OFFUTT, DIGGES, PARKE, and SLOAN, JJ.
Alexander Armstrong, of Baltimore (Arthur W. Machen, Jr., of Baltimore, J. Cleveland Grice, of Hagerstown, and Armstrong, Machen & Allen, of Baltimore, on the brief), for appellant.
Leo H. Miller and J. Lloyd Harshman, both of Hagerstown (William A. Gunter, of Cumberland, on the brief), for appellee.
PARKE, J. C. Frank Schleigh, a builder and contractor, agreed with George W. Hammaker to reconstruct the latter's building in Hagerstown; and, in an action at law by the builder and contractor against the owner to recover for work and labor done as a result of this contract, the plaintiff obtained a verdict of $3,275.33, but the court directed the entry of a remittitur damna to $2,800, and a judgment was rendered for this amount. The record presents sixteen exceptions. The first fifteen are to the rulings on evidence. The plaintiff offered no prayer, and the case was submitted to the jury on the court's instruction, and defendant's second, third, fourth, and fifth prayers. The defendant's first, sixth, seventh, and eighth prayers were rejected, but the defendant's sixteenth exception was confined to the court's action in submitting its instruction to the jury. The important question on the record is the correctness of the court's instruction, which will be first considered.
The contract was made on November 17, 1925, is under seal, and the owner is the party of the first part, and the builder and contractor is the party of the second part. Omitting the formal beginning and ending, with the signatures, and the requirement that the party of the second part will carry insurance to compensate the workmen and to indemnify the party of the first part for any action for injury or damage done to third parties as a result of the rebuilding, the contract is in this form:
"The party of the second part hereby agrees to remodel, rebuild and reconstruct the Blue Ridge Knitting Building owned by the party of the first part agreeable to the plans and specifications attached hereto and made a part hereof at and for the sum of twenty-three thousand five hundred ($23,500.00) dollars payable as the party of the second part presents to the party of the first part or his attorney, C. Walter Baker, receipts for and as the work progresses, the party of the second part agrees to complete the said building and turn same over to the party of the first part on the first day of March, A. D. 1926. That the party of the second part hereby agrees to forfeit the sum of twenty-five ($25.00) dollars per day for each and every day after the 15th day of March that said building is not completed unto the party of the first part.
"It is hereby further agreed by the party of the second part that the party of the first part may retain the sum of seven thousand, five hundred ($7,500.00) dollars until said building is finally completed and accepted by the said party of the first part, same to be retained for the purpose of paying any and all bills amounting to the sum of seven thousand and five hundred ($7,500.00) dollars left unpaid by the party of the second part. * * * And the said party of the first part agrees to pay unto the party of the second part the sum of twenty-three thousand, five hundred ($23,500.00) dollars, and at the time and upon the occasions above set forth."
The specifications attached to the contract are lengthy. At the beginning is the general provision that the entire work is to be constructed and finished according to the specifications and "to the entire approval and acceptance of the owner and his architect"; and in the subdivision which deals with the electric wiring this condition is repeated, and in the subdivision which relates to the heating system the condition is that "it shall be installed complete to the entire satisfaction of the owner and the architect"
The only other portion of the specifications that need be inserted is the following specification for protection against fire:
"Present building has sprinkler system. This shall be remodeled and continued to take care of the additional spaces. System shall be installed in accordance with the underwriter's rules."
The existing sprinkler system at the time of the contract protected four floors of the building. It consisted mainly of a number of pipes in which the water was carried throughout the building and there sprinkled when the water was automatically turned on by the melting of fuses under the heat generated by a fire. The reconstructed building was to be larger but with only three floors to protect, and the pipes in the original building were sufficient in length for the installation of the sprinkler system in the renovated and enlarged building. So, the subject-matter of this part of the agreement was the subsisting system, which the contractor undertook to take down and to rearrange so as to conform to the floors and size of the reconstructed building in such a manner that the system, when so remodeled, should be installed or placed in position for service in accordance with the underwriter's rules.
When not modified by other terms, a contract to install a sprinkler system would generally bind the promisor not only to set up and connect its parts, but to furnish suitable and adequate material for its satisfactory operation. Webster's Unabridged Dictionary,
"Install"; Metzler v. Thye, 163 Cal. 95, 124 P. 721, 722; Long v. Ulmer Machinery Co., 77 Cal. App. 66, 246 P. 113, 116; Bernstein v. Alcorn, 194 Iowa, 1109, 190 N. W. 975, 976. But in view of the fact that the building was equipped when the contract was made with a particular system, and that, by explicit language, it is "this" system which "shall be remodeled and continued to take care of the additional spaces," the meaning of the specification here in controversy is, under the circumstances existing at the formation of the contract, that the contractor was to use the pipes of the subsisting system. This interpretation is supported by the fact that the cost of remodeling with the pipes of the existing system was $500, which would have been increased to $3,600 or $3,750 if new pipes were to be supplied. It is not reasonable to imply an intention of the parties that the contractor should assume so great a burden as the possibility that the pipes then in use would not be fit for their continuation in a similar use.
The exterior of the pipes gave no indication of a defective condition, and there is no evidence that the plaintiff knew of any fault at the time of the contract, nor that he believed that the pipes were not adequate for the proposed remodeling, and so he must be taken to have contracted upon the assumption that the pipes were suitable in quality for the specified purpose. It was not until the plaintiff had taken the sprinkler system down that it was discovered that the pipes had become so rusted and weakened by scale on the interior that they would not continue to withstand the necessary water pressure nor deliver the requisite volume of water. The underwriter inspected the pipes, and declined to approve the remodeled system, if these pipes were used.
As has been seen, the plaintiff was to be supplied by the defendant with the pipe of the old system. If therefore the pipe, through a latent and unknown defect, could not be used as intended, the plaintiff was not in default, as he, through a subcontractor, had dismantled the old system, but could not proceed with the remodeling because he had contracted with respect to the sprinkler system upon his assumption of quality with reference to certain equipment which the defendant had, and the plaintiff was to use, but which, unknown to the plaintiff, did not possess the quality ascribed. The owner did not offer to supply new pipes which the plaintiff was under no obligation to furnish. Stewart v. American Bridge Co., 108 Md. 200, 218, 219, 69 A. 708.
The plaintiff offered testimony which tended to show either a full or a substantial performance of the contract, with the exception of the remodeling of the sprinkler system. The instruction of the court charged the jury on the measure of damages recoverable upon either of these two alternative theories. Since there was no special exception to this prayer on the ground of the insufficiency of testimony to support the several findings of fact submitted to the jury, and the measure of damages is not identical, it will be necessary to state the rule upon each hypothesis.
On the first hypothesis the trial court instructed the jury that if the plaintiff had fully performed his part of the contract, except as to the installation of the sprinkler system; and if the failure of the plaintiff...
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