Orem v. Keelty

• Citation: 36 A. 1030,85 Md. 337
• Parties: OREM ET AL. v. KEELTY.
• Decision Date: 31 March 1897
• Court: Maryland Court of Appeals

36 A. 1030

85 Md. 337

OREM ET AL. v. KEELTY.

Court of Appeals of Maryland

March 31, 1897

Appeal from circuit court, Howard county.

Action in assumpsit on the common counts by Patrick Keelty against W. Morris Orem and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Argued before McSHERRY, C.J., and BRYAN, FOWLER, BRISCOE, BOYD, and RUSSUM, JJ.

Wm. J O'Brien and Wm. J. O'Brien, Jr., for appellants.

John P Poe & Sons and A. P. Gorman, Jr., for appellee.

BRYAN J.

This was an action on the common counts in assumpsit. Keelty, the plaintiff below, entered into a written contract under seal with Orem and others, the defendants, for grading and constructing streets, avenues, and sidewalks through a tract of land in the city of Baltimore, belonging to them. The contract embraced a number of details, which the present purpose does not require us to consider. It was agreed that payments should be made at stated intervals upon estimates furnished by S. J. Martenet & Co., and that Orem and his associates should retain 10 per cent. of the amount of these estimates and that the sum so retained should be due and payable only on the completion of the work before the 1st day of September, 1895. The grades were to be furnished by S. J. Martenet & Co., and the work was to be done in a good, workmanlike manner, under their instructions, and subject to their approval. The work was prosecuted under the contract until July, 1895, when Martenet & Co. refused to furnish the grades to Keelty which were necessary for the continuance of the work; but they were furnished on the 11th day of September,--11 days after the time had elapsed which was appointed for its completion. It was finished in December, and on the 24th day of the month Martenet & Co. gave Keelty a certificate stating that they had examined the work, and found that it was in accordance with the contract as far as the material and workmanship were concerned. This suit was brought to recover the 10 per cent. which had been retained by Orem and his associates, and judgment was rendered in favor of the plaintiff.

The evidence did not show distinctly the circumstances which caused the refusal on the part of Martenet & Co. to furnish the grades. But we will assume for the purposes of this case that it was owing to the default of Keelty. But nevertheless, one fact stands prominently forward, which was not made the subject of contestation or denial. After the expiration of the time appointed for the completion of the work, the defendants permitted Keelty to continue it, furnished him with the grades which were necessary to enable him to do so, and accepted the work, and received the benefit and advantage of it. Under these circumstances there can be no doubt that the defendants are bound to pay a fair compensation for the work, labor, and materials of the plaintiff. Keelty could not have sustained an action of covenant on the contract under seal; but after the failure to complete the work under the conditions of the sealed instrument a new and distinct contract arose from the acts of the parties,--from the work, labor, and materials of the plaintiff furnished for the benefit of the defendants, and received and appropriated by them to their own use and benefit. The opinion of this court in Watchman v. Crook, 5 Gill & J. 239, leaves this question in no doubt. It is there said: "If, after the work was done, though not pursuant to the contract, the party for whom it was done accepted it, it would seem right and proper that he should pay for it what it was worth. This, we think, justice would require, and it is believed that the principles of law do not forbid it. To this effect the law is stated to be in Jewell v. Schroeppel, 4 Cow. 564. It is there said that: 'If there be a special agreement under seal to do work, and it is done, but not pursuant to the agreement, either in point of time or in any other respect, the party...