Messick v. Smith
Decision Date | 11 November 1949 |
Docket Number | 29. |
Citation | 69 A.2d 478,193 Md. 659 |
Parties | MESSICK et al. v. SMITH et al. |
Court | Maryland Court of Appeals |
Action by Oscar F. Smith, Lee D. Smith, and others, against Eugene M. Messick and others, to recover balance allegedly due under a construction contract and for enforcement of mechanic's liens.
The Circuit Court for Wicomico, Levin C. Bailey, J., rendered a decree for plaintiffs Smith for $7,742.89 and in favor of defendant Baker for $2045.78, and Eugene M. Messick and others appealed.
The Court of Appeals held that plaintiffs were precluded from recovering on an oral contract on a time and material basis because they had signed a written contract for a specific sum and thereby participated in false representations by which priorities necessary for performance of the contract were obtained, and affirmed the decree in part and reversed in part and remanded the cause with directions.
Amos W. W. Woodcock, Salisbury, (Woodcock, Webb Bounds & Travers and E. Dale Adkins, Jr., Salisbury, on the brief), for appellants.
Hamilton P. Fox, Jr., Salisbury (Clark & Hearne, Salisbury, on the brief), for appellees.
Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, HENDERSON and MARKELL, JJ.
This is an appeal from a decree against defendants Messick in favor of plaintiffs Smith, for $7742.89 and in favor of defendant Baker for $2045.78, and for enforcement of mechanics' liens for these amounts against a dwelling house built for defendants, for which Baker furnished the heating and plumbing. The question at issue is how much the Messicks owe for the house.
Plaintiffs contend that the house was built on a time and material basis; the Messicks that it was built under a written contract, dated August 12, 1946, between Frederick S. Messick and plaintiffs, for all the work and materials described in the specifications [including heating and plumbing] for $6850, payable within thirty days after completion, and that he thereafter agreed to pay $1000 for extra work, a total of $7850. Messick has paid $2519.14 to plaintiffs and $423.53 to Baker and has tendered plaintiffs the balance of $4907.33 [less $32.53, because of a clerical error not now disputed]. The Messicks say that plaintiffs must pay Baker. On a time and material basis, the gross amount payable was $12,731.34 ($10,262.03 to plaintiffs and $2,469.31 to Baker), of which $9,788.67 (the aggregate amount of the decree) is unpaid.
Messick was a discharged veteran. As such, he was entitled to make application for 'priorities assistance' in purchasing materials for building a house for his own occupancy. Priorities Regulation 33, as amended June 14, 1946, par (b)(1); C.F.R., 1946 Supplement, Title 32, sec. 944.54. On the prescribed Form C.P.A. 4386, he made such application dated July 24, 1946, and priority was 'assigned' to him by the Federal Housing Administration under date September 5, 1946. A proposed sales price was required to be stated, 'to be applicable in the event of any future sale of the house.' The proposed maximum sales price could not exceed $10,000. N.H.A. Regulations 90-1, effective April 12, 1946; C.F.R., Title 24, secs. 707.1-707.2. In Messick's application the blank 'maximum proposed sales price' was originally filled in, by typewriter, as '$8500', which by pen was cancelled and '$7750' substituted. The photostat in the transcript does not show whether this modification was noted in red. Below Messick's signature and above the signature of the F.H.A. agent is a notation, presumably by rubber stamp, On Form 4386 the applicant certifies 'that the facts herein set forth are true and correct to the best of my knowledge and belief' and 'that I will construct * * * the dwelling units, described in this application in accordance with the description given, and that I will comply with the provision of Priorities Regulation 33, including, wherever applicable, the requirements with respect to preferences for veterans and to sales prices, costs and rents.' Form 4386 contains the statement: 'Section 35(A) of the United States Criminal Code, 18 U.S.C. sec. 80 [1948 Revised Criminal Code, 18 U.S.C.A. § 1001], makes it a criminal offense to make a willfully false statement or representation to any department or agency of the United States as to any matter within its jurisdiction.'
Plaintiffs say that in June, 1946 the Messicks showed them plans for a house and asked approximately how much it would cost to build and were told approximately $7000. On July 24, 1946 Lee Smith signed an application for, and obtained, a building permit; in the application the 'Estimated Cost' stated was '$7000.' Work was started in July. Lee Smith testified that: On August 12th Messick 'had a form letter from the agency that approved these priorities', which said, in effect, 'Your application for priority has not been approved for the following reasons', and had a check opposite a paragraph to the effect that the application for priority had not been approved because no contract accompanied the application for priority. Messick asked him whether he would sign some sort of a paper to satisfy this requirement. He told Messick he would, but they would still reaffirm their agreement, 'there would be no contract on the job, it would be time and material'. He took a blank form of contract and made it out, typed it, it was signed by Messick and him, and presumably was sent by Messick to Baltimore in response to the letter. Where he got the figure of $6850 in the contract, 'I really don't know'. One of the things the federal administrator was interested in, he should say, was the price the house was going to cost. The whole purpose in filing the contract was to get a priority so that he could build the house. His statement in the contract that he agreed to build the house for $6850 was not true; in that it represents an agreement to build the house for $6850, it is false; he would not say it is a fraud.
Oscar Smith, the father, testifies that he knew he couldn't have bought the material unless he had had these priorities.
Messick flatly contradicts the Smiths. He testifies, in effect, that the contract of August 12, 1946 was a real contract, executed at Lee Smith's request, and that Smith said he was going to put it at $6850 'to protect himself' by an increase of $300 over a previously agreed price of $6200 plus an extra $350. He also testifies that Smith 'was doing all the negotiation with the people in Baltimore to get the priorities, although it was being mailed to me because I was the owner'.
Two questions are presented: 1. Was the real contract the written contract of August 12, 1946 or an oral contract on a time and material basis? 2. If the latter, are plaintiffs barred from recovery because of their participation in the false representation by which the priorities necessary for performance of the contract were obtained?
1. The first question is one of veracity. It might naturally be supposed that the written contract was honest and genuine and was not a false representation made to obtain priorities. However, the lower court saw and heard the witnesses and reached the opposite conclusion. We cannot say that this conclusion was clearly wrong. On the contrary, without reviewing the evidence, we may say that the court's conclusion is supported by circumstances, especially by Messick's conduct in paying a bill on account, on a time and material basis, after checking it and correcting an error of $1, and also paying two similar bills of Baker. Subject to consideration of the second question, we may assume, as the lower court held, 2. Messick contends that, on this view of the facts, plaintiffs are barred from relief in equity because they do not come into court with clean hands. On this question the lower court says, quoting Thomas v. Klemm, 185 Md. 136, 142, 43 A.2d 193, that the clean hands maxim 'closes the doors of a court of equity to any person who has violated any of the fundamental principles of equity relative to the matter in which he seeks relief, however improper may have been the behavior of the defendant', but also quotes from the same opinion, , and then concludes, ...
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