Oldewurtel v. William F. Bevan & Co.

• Decision Date: 26 March 1912
• Citation: 84 A. 66,117 Md. 645
• Parties: OLDEWURTEL v. WILLIAM F. BEVAN & CO.
• Court: Maryland Court of Appeals

84 A. 66

117 Md. 645

OLDEWURTEL v. WILLIAM F. BEVAN & CO.

Court of Appeals of Maryland

March 26, 1912

Appeal from Superior Court of Baltimore City, James P. Gorter Judge.

Action by William F. Bevan & Co. against Lena Oldewurtel. From a judgment for plaintiff, defendant appeals. Reversed without awarding new trial.

George Washington Williams and John H. Richardson, for appellant.

William H. Hudgins, for appellee.

BRISCOE J.

This is an action of assumpsit upon the common counts brought by the appellee against the appellant in the superior court of Baltimore city to recover for work done and materials furnished in remodeling and repairing a building known as No 225 South Broadway, Baltimore city, and owned by the appellant. The work was to be done and the materials were to be furnished by the appellee, as contractors, in accordance with plans and specifications set out in a written contract between the parties of the form known as the "Uniform Contract of the American Institute of Architects." Article 9 of the contract between the parties provides that "it is hereby mutually agreed between the parties hereto that the sum to be paid by the owner to the contractor for said work and materials shall be $4,512.00, subject to additions and deduction as hereinbefore provided, and that such sum shall be paid by the owner to the contractor in current funds, and only upon certificates of the architect as follows: Seventy-five per cent. during erection, twenty-five per cent. after completion. This seventy-five per cent. is to be drawn in the amount of $500.00 at a time. Final payment shall be made within ten days after the completion of the work included in this contract, and all payments shall be due when certificates for the same are issued." The building was to be completed in all its details under the contract to the entire satisfaction of the owner and architect, with some exceptions specified in the contract, and the work was to be done under the direction of the architect, and his decision as to the true construction and meaning of the drawings and specifications should be final and conclusive. The work proceeded upon the building until the 4th of January, 1911 when a dispute arose between the parties upon a demand by the appellee for further payments on account of the contract. The demand was refused by the appellant upon the ground that she had paid more than 75 per cent. of the contract price, and that she was entitled to retain the residue 25 per cent under the contract until after completion of the building.

The plaintiff testified thereupon, as he was embarrassed financially, he was unable to proceed with the completion of the work, and he then stopped work and placed the matter in the hands of his attorney for suit, and that the work under the contract was not completed when he stopped it and turned the matter over to his lawyer. The credit payments made by the defendant and admitted by the bill of particulars filed in the case on account of the contract aggregated the sum of $3,162.98. There were two additional payments by way of orders, one for $305, and one for $118 drawn by the plaintiff on the defendant, which were accepted and paid by her. The plaintiff further testified that he had stopped work on the building on or about January 4, 1911, because he had no money to go ahead with the work, and the defendant refused to make any further advances, she claiming that there was nothing due him at that time, she having advanced more than 75 per cent. in accordance with the contract; that his employés continued the work on the building under the specifications, but not under him, but worked as employés of the defendant, and were paid by the defendant; that he had nothing to do with the work after that time, and he approved the following orders for the wages for the men, in order to save the men any trouble and not in recognition of them as his employés: Order dated January 18, 1911, and signed by the plaintiff, directing the defendant to pay the sum of $97.67 to the men for wages for week ending Friday, January 13, 1911, and charged the same to account of 225 South Broadway; order dated January 19, 1911, and signed by the plaintiff, directing the defendant to pay the sum of $85.54 to the men for wages for labor on 225 South Broadway for week ending January 20, 1911, and charge same as payment on account of work 225 South Broadway; order dated February 2, 1911, and signed by the plaintiff, directing the defendant to pay the sum of $87.98 to the workmen for services in and about premises 225 South Broadway, and charge same to account of William F. Bevan & Co.; order on the defendant, to pay Edward C. Taylor $10 for work done on said building--making the total amount paid by the defendant $3,779.19.

The plaintiff also testified that order No. 1, to Lauer & Harper Company, for $625, order No. 2, to Keighley Metal Ceiling Company, for $118, and order No. 3, to Chase & Co., for $305, were drawn by him on the defendant, but "he understood they were to be paid by the defendant out of the reserve 25 per cent. and was expected not to mature before the 4th of January, 1911." But it is admitted that the $625 was actually paid by the defendant before he discontinued the work, and the defendant credited thereby.

The evidence upon the part of the defendant tended to prove that the plaintiff was paid in such sums as he demanded up to the...