McNeil v. Armstrong

• Decision Date: 10 July 1897
• Docket Number: 219.
• Citation: 81 F. 943
• Parties: McNEIL v. ARMSTRONG.
• Court: U.S. Court of Appeals — Fourth Circuit

81 F. 943

McNEIL v. ARMSTRONG.

No. 219.

United States Court of Appeals, Fourth Circuit.

July 10, 1897

The plaintiff in error, who was the defendant below, entered into a contract December 19, 1894, with A. F. Wurach, by which the latter was to furnish and set the tiles, copper work gutters, and conductors on the roof of the house of G. M Hutton, At Newport, R.I., in accordance with the plans and specifications of Messrs. Peabody & Stearns, architects. McNeil Bros. were the contractors for the building of the house. Wurach, whose contract was for the roof only, began work in July, 1895, and finished in December, 1895; and the defendant in error, who was the plaintiff below, is his assignee. This suit is for the balance due on that contract so much of which as is relevant to the controversy herein is in the words following: 'It is hereby agreed that the said Adam F. Wurach will fully do, perform, and furnish all the work and materials required to be done by the said McNeil Brothers under the above-named contract, plans specifications, and details, all to be done in good and thorough manner, and all the materials provided to be of the best quality, and are to be to the entire satisfaction of Mr Geo. M. Hutton and Messrs. Peabody & Stearns. ' The suit was commenced in the superior court of Baltimore city, and removed, upon the petition of the defendant, to the circuit court of the United States for the district of Maryland. The plaintiff in error offered three prayers for instructions which were refused by the court, and the assignments of error are for the refusal to grant the first and third prayers, which are as follows: 'First Prayer. The defendant prays the court to rule, as matter of law, that the plaintiff is not entitled to recover in this case unless the court, sitting as a jury, shall find that the work and materials called for by the plans, specifications, and details referred to in the contract offered in evidence of December 19, 1894, between McNeil Bros. and Adam F. Wurach, were done and furnished by said Wurach in accordance with the said plans, specifications, and details; that the said material were of the best quality; that the said work was done in a good and thorough manner, and that the said materials and the said work were to the entire satisfaction of the firm of Peabody & Stearns, architects, and of the G. M. Hutton mentioned in said contract; and that the roofs referred to in said contract and plans, specifications, and details are thoroughly tight, in the judgment of the said Peabody & Stearns. ' 'Third Prayer. The defendant prays the court to rule, as matter of law, that if the court, sitting as a jury, shall, under the rulings of the court, find a verdict for the plaintiff, the damages which the plaintiff is entitled to recover in this case are the sum of $300, charged for change of gutters, the sum of $17.50, charged for lead, and such other sums the court, sitting as a jury, may find a reasonable charge for repairing the injury to the roof caused by the blowing off of the boards, as testified to, and the difference between the contract price for said roof and the cash paid the said Wurach by the defendant, less the allowances claimed by the defendant, as set out in the account offered in...