Mayor & City Council of Baltimore v. Reynolds

• Decision Date: 05 May 1863
• Citation: 20 Md. 1
• Parties: THE MAYOR & CITY COUNCIL OF BALTO., v. H. R. and J. REYNOLDS.
• Court: Maryland Court of Appeals

20 Md. 1

THE MAYOR & CITY COUNCIL OF BALTO., v. H. R. and J. REYNOLDS.

Court of Appeals of Maryland.

May 5, 1863

APPEAL from the Superior Court of Baltimore City:

This was an action brought by the appellees against the appellants on a special contract under seal, to recover certain profits which the appellees claim that they would have made upon said contract if they had not been stopped in its performance, and the contract itself set aside by the appellants; and also to recover damages for injury alleged to have been sustained by the appellees in their character as builders, from the conduct of the appellants. So much of the pleadings and evidence as is essential to a proper understanding of the points decided, is stated in the opinion of this Court.

The cause was argued before BOWIE, C. J., and GOLDSBOROUGH and COCHRAN, J.

(The Court in their opinion have considered only the issues raised by the first three pleas of the appellants. The other issues having been held by them not material to the disposition of the cause, the learned and elaborate arguments of counsel in relation to them have been here omitted.--REP.)

Grafton L. Dulany, for the appellants:

Admitting that the City Commissioner and other officials were aware of the departure from the contract and did not object to it, the Mayor and City Council would not have been compromised thereby. Mayor & C. C. of Balto., vs. John Eschback, 18 Md. Rep., 282.

A waiver of the contract may be presumed from acts inconsistent therewith. The only redress for the appellees was on a quantum meruit.

The following authorities were cited on behalf of the appellants Mayor & C. C. of Balto. vs. Lefferman 4 Gill, 425. Morris vs. Mayor & C. C. of Balto., 5 Gill, 244. Parsons on Cont., 189. Goodrich vs. Lafflin, 1 Pick., 57. Hill vs. Green, 4 Pick., 116. Simmons vs. Norton, 7 Bing., 271. Rubery vs. Jervoise, 1 T. R., 133. Henderson vs. Mayhew, et al., 2 Gill, 403 3 Phil. Ev., 331. Bullit vs. Musgrave, 3 Gill, 31. Baker vs. Brannan, 6 Hill, 47. Lockwood vs. Thorne, 1 Kernan, 170. Cook's Lessee vs. Carroll, 6 Md. Rep., 111. Showman, et ux., vs. Miller, et al., Id., 479. Ferris vs. Walsh, 5 H. & J., 308. Whiteford vs. Munroe, 17 Md. Rep., 135. Osceola Tribe Red Men vs. Roce, 15 Md. Rep., 296. State vs. Reigart, 1 Gill, 1. Marshall vs. Hanna, 4 Md. Rep., 512. Bilbie vs. Lumley, 2 East, 469. McLellan, et ux., vs. Kennedy, et al., 8 Md. Rep., 239. Shannon vs. Comstock, 21 Wend., 457. Chamberlin vs. McAlister, 6 Dana, 353, 355. Spencer, vs. Halstead, 1 Denio., 602, 606.

Wm. Schley, for the appellees:

The validity of the contract of August 11th, 1856, is admitted by the other side, they contending that it was afterwards avoided and extinguished by the acts of the parties. The contract was authorized to be made by the City Commissioner by the resolution of July 8th, 1856. It was validly made, within the scope of the Commissioner's authority. The report of 1855 can have no influence on the construction of the Ordinance of 1856. And even if the act of the Commissioner, in any particular was ultra vires, still it was recognized in various ways as valid and binding, and especially by the Ordinance of December 31st, 1856. Aldridge vs. Williams, 3 Howd., 24. Bank of Columbia vs. Patterson, 7 Cranch., 299. Bank of the U.S. vs. Dandridge, 12 Wh., 70, 83. Union Bank vs. Ridgely, 1 H. & G., 325, 427.

Where a party is authorized to do a certain act without appeal, his act is conclusive. State vs. Jarrett et al., 17 Md. Rep., 309. Phil. Wil. & Balto. R. R. Co. vs. Howard, 13 Howd., 307, 334.

The contract was a valid one; the stoppage of the work was a violation of the contract, and the damages we were entitled to recover were such as the jury were to find from all the circumstances that we actually sustained.

Mr. Schley cited in the course of his argument the following authorities: Watson on Arbitrators, 8, 9 and 145, 59 Law Lib. Walsh vs. Gilmor, 3 H. & J., 383, 395. Randall vs. Glenn. 2 Gill, 438, 439. Northampton Gas Light Co., vs. Parnell, 29 Law & Eq. Rep., 229. Allen vs. Milner, 2 Cromp. & Jerv., 47. Also Gordon vs. Mitchell, 4 Eng. C. L. Rep., 432. Leggo vs. Young, 81 Eng. C. L. Rep., 626 and 632. Ebert vs. Ebert, 5 Md. Rep., 354 and 357. Roloson vs. Carson, 8 Md. Rep., 208. Also Snowden vs. Thomas, 4 H. & J., 335. Geiser vs. Kershner, 4 G. & J., 305. Jones vs. Ricketts, 7 Md. Rep., 108. Campbell vs. Booth, 8 Md. Rep., 107.

R. Johnson. on the same side, maintained the following propositions:

1st. The plaintiffs are entitled to recover for all that was done or was being done under the original contract.

2nd. From the work being done there arose a presumed contract under which the plaintiffs were entitled to recover.

3rd. If the plaintiffs were entitled to recover under the original or a presumed contract, they were entitled to recover all they could have made in the way of profits, and they have done nothing to defeat that right.

In support of these propositions the following authorities were cited: On the first proposition, 3 How., 24; Jarrett vs. Harwood, 17 Md. Rep., 327; on the 2nd, Dandridge vs. Bank of U. S., 12 Wh., 69, 70. Union Bank vs. Ridgely, 1 H. & G., 324.

Wm Price, for the appellant, in reply argued:

1st. That the plaintiffs below were never entitled to any profits at all under the contract.

2nd. That profits have been allowed and paid them when they were entitled to none.

OPINION

BOWIE, C. J.

The appellees sued the appellants, on a special contract under seal, entitled, " Articles of Agreement, made and concluded this 11th of August, in the year of our Lord one thousand eight hundred and fifty-six, between Joseph P. Shannon, City Commissioner, acting for and in behalf of the Mayor and City Council of Baltimore, of the first part, and Henry R. Reynolds and Josiah Reynolds, trading and doing business under the name and firm of H. R. and J. Reynolds, of the second part."

The nar., after reciting the Resolution, the Articles of Agreement, etc., avers that, after the making and approval of said contract the said plaintiffs did actually enter upon the execution of said contract, and the performance of the work therein mentioned, and thenceforth continued in the execution of said contract, and performance of said work, until the defendant caused to be stopped and did stop the work on said jail and prevented said plaintiffs from the further execution of the same, as thereinafter set forth and pleaded. The appellees aver, that when they entered on the execution of said contract, they were ready and prepared to build in accordance with the plan of Thos. and J. W. Dixon, architects of the City of Baltimore, as mentioned in said contract, and were ready and prepared (in case the said T. P. Shannon should deem it necessary, and determined to make any or all of the improvements specified in said Resolution) and should so direct, to build said new jail comformably to the directions in that behalf of said Shannon, and the said Shannon, deeming it necessary, did determine to make certain of the improvements, and did direct the appellees to build the said new jail in conformity to the directions of said Shannon, which directions were observed, obeyed and followed by them, and the appellants caused the said work to be stopped.

The contract and its breaches as alleged, are put in issue by the first three pleas of the appellants; the other pleas present issues, the consideration of which is not material in the disposition of the case. In this state of the pleadings, it was incumbent on the appellees to establish, in limine, the validity of the contract. For which purpose, they submitted the first of their series of prayers, by which it is declared that the paper dated the 11th of August 1856, purporting to be a contract between said appellees and said Shannon as City Commissioner, was a valid and binding contract, which being granted, constitutes the appellants' first ground of exception.

The appellants, being a public, municipal corporation or body politic, acting by a legally constituted officer, known as the City Commissioner, whose powers in the premises were conferred by a special resolution, it is obvious that in deciding what was the contract, the Court must pass on all the questions involved in the construction of such contracts, made by public officers; and primarily, whether the paper declared to be a valid contract, was within the special authority conferred on the Commissioner.

The authority of the agent, the description of the building to be erected, the plan and specifications, the manner in which the contract should be made, the duty of the Commissioner in superintending the work, and an injunction, to " cause the work to be done in strict conformity to the plan and specifications agreed upon, " are to be found in the Resolution of the appellants of the 8th of July 1856, viz:

Resolved, by the Mayor and City Council of Baltimore, that the City Commissioner be and he is hereby authorised and directed to advertise immediately, in two or more of the daily newspapers of the City of Baltimore, for such period of time as he may judge necessary, for proposals for building a new jail on the site or lot on which the old jail now stands; said new jail to be built according to the plan and specifications submitted by Thomas and J. W. Dixon, to the committee on police and jail of the City Council of 1855, and now on file in the office of the City Register, with such alterations as may be necessary to enlarge the cells, improve the ventilation, provide accommodations in said jail or contiguous thereto for the use of the Warden, in the event of the City Commissioner deeming such alterations or improvements advisable; and the said Commissioner...