McEvox v. Willard E. Harn Co.

• Decision Date: 23 June 1916
• Docket Number: No. 29.,29.
• Citation: 98 A. 522
• Parties: McEVOX v. WILLARD E. HARN CO.
• Court: Maryland Court of Appeals

98 A. 522

McEVOX

v. WILLARD E. HARN CO.

No. 29.

Court of Appeals of Maryland.

June 23, 1916.

Appeal from Baltimore City Court; James P. Gorter, Judge.

"To be officially reported."

Action by Willard E. Harn Company, Incorporated, against James McEvoy. From a judgment for plaintiff, defendant appeals. Affirmed.

The following are the instructions referred to in the opinion:

Plaintiff's third prayer: "The jury are instructed if they find from the evidence that the architect mentioned in evidence requested the plaintiff to submit prices for certain extra work to be done in and about the building being erected by the defendant, and that the plaintiff, in response to said request, submitted in writing to said architect, at the times mentioned in evidence, estimates of the cost of doing said extra work, and shall further find that said architect consulted said defendant with reference thereto, and that said defendant approved of the same and authorized said architect to have said extra work done at the prices named, and that in pursuance of said authority, said architect ordered the plaintiff to do said work at the prices named, and that the plaintiff did said work, then the verdict of the jury as to all of such items of extra work must be in favor of the plaintiff, for an amount equal to the prices specified, with interest in their discretion. (Granted.)"

Defendant's fourth prayer: "The defendant prays the court to instruct the jury that there is no evidence legally sufficient to establish any employment of the architect, Thomas Bond Owings, as a general agent of the defendant; that the powers of the said architect to bind the defendant are limited by the contract in evidence between the plaintiff and the defendant; and that the said architect is not authorized to alter or modify the said contract or the plans or specifications which are referred to therein, nor has the said architect any authority to bind the defendant for any work or materials furnished for the building mentioned in said contract, and not shown by said plans or mentioned in said specifications; nor any authority to bind the defendant to accept work or materials of a character different from those which are shown by said plans and described in said specifications, unless and only to the extent that the jury shall find from the evidence that the said architect was specially authorized by the defendant to order such additional work and materials, or specially authorized by him to modify said contract, plans, and specifications. (Granted.)"

The court then gave the following instructions:

Court's first instruction: "The court instructs the jury that if the jury find from the evidence that the plaintiff constructed the dwelling of the defendant in substantial accordance with the terms of the contract of February 11, 1914, offered in evidence, and that said dwelling has been occupied and used by defendant since October 29, 1914, and was reasonably satisfactory and acceptable to the defendant, then the plaintiff is entitled to recover the unpaid balance of the contract price, less such sum as the jury find should be deducted therefrom on account of such defects as may be found by the jury in said dwelling caused by the lack of workmanship on the part of the plaintiff, or by the use of materials other and inferior to those specified in the contract, or by any omissions in work or materials, or by any deviations from the plans and specifications not acquiesced in by the defendant, and shown to have made said building less valuable to the defendant, together with interest at 6 per cent. in the discretion of the jury on such sum as the jury shall there find to be due."

Court's second instruction: "The court instructs the jury that, for any alterations or extras sued for and claimed in this case that the jury find from the evidence were made or furnished with the knowledge of the defendant, James McEvoy. the estimate or cost for which the defendant knew, the plaintiff is entitled to recover the amount of said cost or estimate; and for any of the alterations or extras made or furnished sued for and claimed in this case that the jury find from the evidence were made or furnished with the knowledge of the defendant James McEvoy, or at the request of his wife, if the jury find she had authority to order the same, that the defendant did not know the estimated cost thereof, the plaintiff is entitled to recover the reasonable value thereof; and for any of the alterations or extras made or furnished sued for and claimed in this case that the jury find from the evidence were done without the knowledge of the defendant, James McEvoy. notwithstanding the jury find they were ordered by the architect, the plaintiff is not entitled to recover for. The jury may allow in their discretion interest at 6 per cent. upon any sum they may find to be due for alterations or extras."

Court's third instruction: "The jury are instructed that the building of the wall around the laundry yard is included within the original contract of February 11, 1914, and therefore the plaintiff is not entitled to recover therefor the sum of $331.78 charged therefor or any part thereof."

Court's fourth instruction: "The jury are instructed that if they find from the evidence that the plaintiff was compelled by the building inspector of Baltimore to build the foundation walls of the defendant's house 21 inches in width instead of 16, as specified in the contract of February 11, 1914, then the plaintiff under the contract is not entitled to recover from the defendant the sum of $126 charged therefor, or any part thereof."

Court's fifth instruction: "The court instructs the jury that under the contract the plaintiff agreed to connect the plumbing drainage with the sewer, and therefore the plaintiff is not entitled to recover the sum of $90, charged therefor, or any part therefor."

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

J. Kemp Bartlett and Joseph O. France, both of Baltimore (L. B. Keene Claggett, of Baltimore, on the brief), for appellant. Enos S. Stockbridge and Myer Rosenbush, both of Baltimore, for appellee.

BRISCOE, J. On the 9th of February, 1914, the appellant entered into a contract with the appellee, a body corporate, for the erection and construction of a brick dwelling, on Wendover Road and Greenway, Guilford, in Baltimore City, according to certain plans and specifications prepared by Mr. Thomas B. Owings, architect, and made a part of the contract The contract is set out in the record, and is the approved form of contract, known as "the uniform building contract," and was filed by the plaintiff with the declaration in the case. By the terms of the contract, the appellee was to provide all the materials and perform all the work for the erection and completion of the building, at and for the sum of $24,020. Subsequent to the execution of the contract, certain extra work, amounting to the sum of $6,789.34, is alleged to have been performed by the contractor, at the request of the owner and by direction of the architect, in addition to the contract price, and the items of this extra work are shown on an annexed itemized statement, filed with the declaration and set out in the record now before us. It is admitted that the defendant has paid the plaintiff the sum of $18,000 under the...