Milske v. Steiner Mantel Co.

• Citation: 63 A. 471,103 Md. 235
• Parties: MILSKE v. STEINER MANTEL CO.
• Decision Date: 27 March 1906
• Court: Court of Appeals of Maryland

63 A. 471

103 Md. 235

MILSKE v. STEINER MANTEL CO.

Court of Appeals of Maryland

March 27, 1906

Appeal from Court of Common Pleas, Danl. Giraud Wright, Judge.

Action by Charles Milske against the Steiner Mantel Company. From a judgment sustaining demurrers to the amended declaration plaintiff appeals. Affirmed and remanded for trial on the merits.

Argued before McSHERRY, C.J., and BRISCOE, BOYD, PAGE, SCHMUCKER JONES, and BURKE, JJ.

William S. Bansemen, for appellant.

John H Richardson and Wm. S. Bryan, for appellee.

BURKE J.

This is an action of covenant based upon a sealed agreement between the parties to the suit dated June 1, 1903. The suit was originally instituted in the circuit court for Baltimore county, but was subsequently removed to the court of common pleas. By leave of the court, the plaintiff, on the 19th of June, 1903, filed an amended declaration, which contained three counts, each of which purported to assign breaches of the agreement committed by the defendant. The defendant demurred to each count of the declaration. The court sustained the demurrers, with leave to the plaintiff to amend, which he declined to do, and thereupon the court entered judgment on the demurrers in favor of the defendant. From this judgment the plaintiff appealed.

The record therefore presents this one question: Was the court's ruling upon the demurrers correct? The circumstances which gave rise to the suit are as follows: The defendant corporation contemplated the erection of a brick factory and storehouse to be located in Baltimore county, and to that end had plans and specifications for the construction of the work prepared. The contract was awarded to the plaintiff on the 1st of June, 1903, and he obligated himself to complete the work in 47 working days. During the course of the erection and construction of the building, and when the same had been almost completed, it was blown down on the 12th of July, 1903, by a storm of unusual violence and severity which swept over the section of the county in which the building was located. It was made a condition precedent to the awarding of the contract to the plaintiff that he should enter into a bond to the defendant, in conjunction with a surety company satisfactory to the defendant, as surety, conditioned for the faithful performance of the contract. There was also a stipulation in the contract that, as the work advanced to certain stages of completion, the plaintiff should be paid certain specified sums. When the storm of the 12th of July, 1903, demolished the building, an installment of $1,500, due the plaintiff under said provision of the contract, was unpaid. The proposition for which the plaintiff contends is that, under the contract between himself and the defendant, all losses, or damages, which resulted to the building from the storm of July 12, 1903, which the narr. describes as an "act of God," must be borne by the defendant, and that he (the plaintiff) has a right under the contract to recover all such losses and damages to said work as he may be able to show he sustained by reason of the storm. The first and third counts are based solely upon this contention. The second count presents a different question, and will be considered later. The first count seeks to recover an unpaid installment of $1,500, and also the value of the materials used in the construction of the building, which it alleges were retained and used by the defendant. The third count alleges that "the defendant was bound to suffer and stand good for the loss from an act of God, and the plaintiff was relieved from any loss so incurred, and that the defendant was under an obligation to bring the building to the stage of completion to which it had progressed at the time it was destroyed." Under this count the plaintiff seeks to recover profits on the contract, the unpaid installment of $1,500, and the value of the materials used in the work. The theory upon which the plaintiff seeks to maintain these counts is that the bond and building contract are to be taken together as constituting the agreement by which the rights and duties of the respective parties to the suit must be determined, and that, inasmuch as by the third condition in the bond given by the plaintiff and the American Surety Company it is provided "that the principal shall not, nor shall the surety be liable for any damage resulting from an act of God," it is argued that thereby the obligations asserted in the first and third counts were imposed upon the defendant, and that, upon this conception of the character and meaning of the contract, the pleader has introduced verbatim into each count of the narr. the agreement and bond. It therefore appears that the question presented involves an inquiry as to what was the contract entered into between the parties, and what were the rights and obligations arising thereunder?

It is needless to quote authorities to show that, in the construction of a contract, the intention of the parties as it appears from the whole agreement must be ascertained and given its full effect. The rule of contention was stated, with great clearness, in Nash v. Towne, 5 Wall. 699, 18 L.Ed. 527, as follows: "Courts, in the construction of contracts, look to the language employed, the subject-matter, and the surrounding circumstances. They are never shut out from the same light which the parties enjoyed when the contract was executed, and, in that view, they are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and so to judge of the meaning of the words and of the correct application of the language to the things described." When the contract for the construction of the factory and the storehouse is looked at in the light of these principles, the contention of the plaintiff that the covenants and conditions of the bond, which the plaintiff was required to give for the faithful performance of his duties, are to be read into the contract, and to be taken, not only as narrowing and limiting his obligations under his agreement with the defendant, but as imposing new and additional duties upon the defendant, cannot for a moment be entertained. The plaintiff undertook to do a certain, definite thing, to wit, the erection and completion of a factory and storehouse according to the plans and specifications furnished by the defendant. These plans and specifications constituted a part of the contract. He was to do all the work, and furnish all the materials to be used in and about the erection of the building, and was to do the work in a good and thorough workmanlike manner. He further obligated himself to have the building completed, and ready for the business for which the same was to be erected, in a specified number of days. Upon the performance by the plaintiff of all the covenants on his part to be performed, the defendant agreed to pay to the plaintiff the sum of $8,794.50 in the following installments, viz.: $500 when the building is completed to the first floor, and the first floor joists are laid; $1,000 to be paid when the building is completed to the second floor, and the second floor joists are laid; $1,000 to be paid when the building is completed to the third floor, and the third floor joists are laid; $1,500 to be paid when the building is completed to the roof, and the roof is placed upon the same; $500 to be paid when the flooring on the first floor is laid, and trimmed out; $500 to be paid when the flooring on the second and third floors each is laid and trimmed out; the balance of $3,294.50 to be paid when the building is completed in accordance with said plans and specifications, and same delivered to said party of the second part free of all claims by the party of the first part or any party claiming through him. There is also a stipulation...