Lanahan v. Heaver

• Decision Date: 20 June 1894
• Citation: 29 A. 1036,79 Md. 413
• Parties: LANAHAN v. HEAVER.
• Court: Maryland Court of Appeals

29 A. 1036

79 Md. 413

LANAHAN v. HEAVER.

Court of Appeals of Maryland

June 20, 1894

Appeal from superior court of Baltimore city.

Action by John Heaver against Thomas M. Lanahan. From a judgment for plaintiff, defendant appeals. Reversed.

For opinions on former appeals, see 74 Md. 493, 22 A. 263, and 77 Md. 605, 26 A. 866.

Argued before ROBINSON, C.J., and BRYAN, BRISCOE, PAGE, BOYD, and McSHERRY, JJ.

Atty Gen. Poe and Frank Gosnell, for appellant.

J. V L. Findlay and Henry W. Fox, for appellee.

McSHERRY J.

This case is now before us for the third time. The prior appeals are reported in 74 Md. 493, 22 A. 263, and 77 Md. 605, 26 A 866. The latter of these has no relation to the merits of the case, but the former has. A brief statement of the facts is necessary to present in concise form the questions which are now brought up for final decision. It appears that on June 16, 1888, the appellant, being the owner of 27 unimproved ground rents situated on North avenue in the city of Baltimore, entered into a contract with the appellee, whereby the latter agreed to erect 27 houses, of the dimensions and character designated, at his own cost and expense, upon these 27 lots; that the appellant bound himself to cause the leasehold estate, then held by one Anthony S. Bonn, to be assigned to the appellee when the houses should be under roof, and further to pay to the appellee, as a bonus upon each house, the sum of $800, in certain specified installments as the work progressed; that the work was commenced, and 22 houses were built, and the bonus due upon each was paid; that on October 2, 1888, application was made to the mayor and city council to open and extend Barclay street through the 5 westernmost lots of the 27, northwardly to First street, and that, about the 12th of the same month Mr. Lanahan notified Mr. Heaver that, as these lots would be needed by the city for a part of the bed of the street, he would not expect the appellee to construct the five houses originally intended to be built thereon, inasmuch as they would, if built, be torn down immediately after being erected. Mr. Heaver, however, proceeded to grade these lots, and excavated the cellars, and partially built the foundation walls of the houses in the bed of the proposed street, but whether before or after the receipt of the notice from Mr. Lanahan is disputed by the witnesses, though whether before or after is wholly immaterial so far as the pending appeal is concerned. It is certain that no part of the work on these houses had progressed far enough before the notice was given to entitle the appellee to any bonus under the contract. When the first floors of joists had been laid in three of these five houses, Mr. Heaver demanded from Mr. Lanahan the installment of the bonus payable under the contract at that stage of the work, but the latter refused to pay, because he had notified the appellee not to proceed with the work, in consequence of the proposed extension of Barclay street. Mr. Heaver then ceased work on these five houses. Later on, the damages occasioned to Mr. Heaver by the opening of the street were assessed by the commissioners for opening streets at $1,600, but, being dissatisfied with that award, he appealed therefrom to the Baltimore city court, where the jury increased the amount to $2,000. Upon the trial of the appeal from the commissioners, Mr. Heaver claimed and was allowed damages for all the work done and materials used by him upon the five houses in the bed of the street, and for the losses sustained by him upon subcontracts with mechanics and material men for work to be done on, and materials to be furnished for, those houses, as well as for materials actually purchased by him, but not used; and these damages were paid to him by the city. Subsequently, he sued Mr. Lanahan to recover damages for the breach by the latter of the contract of June 16, 1888; and, upon the lower court's ruling, on a demurrer to one of the pleas, the first appeal, reported in 74 Md. 493, 22 A. 263, was brought to this court. In the declaration filed by Mr. Heaver the refusal of Mr. Lanahan to pay the bonus then claimed by the appellee to be due on these five houses was the breach assigned and relied on, and it was averred that thereby the plaintiff was compelled to desist from the further prosecution of the work. The declaration concluded with the averment that the plaintiff was injured, not only by the defendant's refusal "to pay the said bonus money," but also because the plaintiff, on the faith of the agreement, had entered into other contracts with mechanics and material men, which he was not able to perform by reason of the default of the defendant, and that he had suffered "other losses and injuries," to his great damage and prejudice. The ruling of the superior court, on the former trial, upon the demurrer to the defendant's third plea, resulted in a judgment for the defendant; and, upon appeal by the plaintiff, that judgment was reversed, and the cause was remanded for a new trial A new trial was ultimately had upon the same declaration, to which amended pleas were filed. The court, upon the second trial, rejected all the prayers offered on both sides, and granted two instructions of its own upon a finding in favor of the plaintiff; entered judgment in his behalf against the defendant for $1,750 damages; and from that judgment this appeal has been taken.

It will be observed that the damages claimed in the declaration are--First, the bonus money stipulated for under the contract; second, losses on subsidiary contracts with material men and mechanics; and, third, other losses and injuries. But in the former appeal, in 74 Md. and 22 Atl. supra, we distinctly held that bonus, as such, could not be recovered as the case then stood, and its status has not been changed in this particular. The notice by the appellant to the appellee, early in October, 1888, not to build upon the five lots in question, was not declared on as a breach of the contract; but, if it had been treated as such, the appellee would not have been warranted in proceeding with the work, and thus making the damages recoverable against the appellant heavier to the extent of the value of the work so done after the notice than they would have otherwise been. "The plaintiff had no right, by obstinately persisting in the work, to make the penalty upon the defendant greater than it otherwise would have been. * * * To persist in accumulating a larger demand is not consistent with good faith towards the employer." 74 Md. 498, 22 A. 263. As a consequence, the bonus earned by building in the bed of the street after the notice of October had been given was held not to be recoverable, and that not earned is equally not payable. With reference to the losses on subsiduary contracts, it is only necessary to say that Mr. Heaver claimed these identical damages from the city, recovered them in the street condemnation proceeding, and was paid by the city for them. Having been paid once, he cannot recover them now from Mr. Lanahan, and, as we understand the argument of his distinguished counsel, this element of damages is abandoned altogether. And so with unused materials. There remains, then, only the other losses and injuries,--averred generally, but not particularized in the declaration. These other losses and injuries are confined to lost profits, that is to say, profits which the plaintiff might have realized had he been permitted to go on and complete the contract for the construction of the five houses in the bed of Barclay street. There are cases in which recoveries of the profits that a plaintiff would have made had he been permitted by the defendant to perform his undertaking have been allowed;...