Rittenhouse v. Mayor, etc., of Baltimore

• Decision Date: 11 July 1866
• Citation: 25 Md. 336
• Parties: GEORGE R. RITTENHOUSE v. THE MAYOR & CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

25 Md. 336

GEORGE R. RITTENHOUSE v. THE MAYOR & CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

July 11, 1866

There was proof offered that R. had been for fifteen years engaged in the manufacture of bricks near the City of Baltimore, and that at the date of the contract, he had on hand 600,000 bricks of his own manufacture, which were of ready sale in the market, but which he retained in hand in consequence of the contract, and to enable him to supply bricks necessary for the work; that after the repealing ordinance had been passed, and he received notice thereof, he sold the bricks at prices averaging about one dollar and fifty cents per thousand less than he could have realized by a sale of them in November, 1860. Held that the loss and damage thus incurred, if found by the jury, would be properly recoverable in this action.

APPEAL from the Superior Court of Baltimore city:

This was an action brought by the appellant against the appellee to recover damages "for a breach and violation by the defendant of its contract and agreement with the plaintiff," whereby the latter agreed "to execute and perform all the brick-mason's work, including all the bricks, lime, sand and labor for and on the buildings forming the west front of the alms-house buildings, as described in said contract," and whereby the defendant agreed to pay the plaintiff for such services and materials the sum of $57,350.84. The defendant pleaded performance, and on said plea issue was joined. The plaintiff afterwards filed a bill of particulars, for which see the opinion of this Court.

Exception.--At the trial of the cause the plaintiff to sustain the issue joined on his part, read in evidence to the jury the ordinance of the Mayor and City Council of Baltimore entitled, an ordinance providing for the purchase of a site and the erection of an alms-house and the necessary outbuildings, &c., approved April the 28th, 1860; and also read in evidence the contract or articles of agreement between himself and the defendant.

He further proved that in the month of November, in the year 1860, he entered into a contract with the said defendant through its proper agent to execute and perform all the brick-mason's work, including the supply of all the bricks, lime, sand and lime for the same, for and on the three buildings, forming the west front of the said alms-house building according to the plans, elevations sections and working drawings and specifications provided for the purpose--for all which work and materials the said defendant contracted to pay him the sum of $57,350.84; and also, read in evidence, the bond which he had given to the defendant for the performance of the contract on his part. He then read in evidence to the jury his proposals to the defendant, from which it appears that the contract aforesaid was at the rate of $10.93 per thousand of bricks, to be supplied by him as aforesaid, the quantity of brick being 53,000, also the plans, specifications, &c., which it is agreed are to be inserted in this bill of exceptions, or appended to it if it shall be so required by either party.

The plaintiff being then sworn as a witness for himself, proved that in consequence of his aforesaid contract with the said defendant and to enable him the more conveniently to execute his part thereof, and shortly after making said contract he entered into an agreement with one Daniel White, the owner of a lot of ground in the vicinity of the site of the alms-house, for the privilege of digging the clay on said lot for manufacturing thereof the bricks intended by him for said alms-house, and for making and burning the said bricks on the said lot, and for taking wood from said lot for burning the said bricks, and did actually dig a quantity of clay on said lot, and made a small quantity of bricks thereof at the plaintiff's yard on West Baltimore street; this was done to determine the quality of said clay, and of the bricks made therefrom, and that the bricks so made were of a good merchantable quality, and fully equal in quality to the specifications aforesaid; that he was to pay to the said White, for the privileges aforesaid, the sum of fifty cents for every thousand bricks he should make as aforesaid, and also an additional sum for the wood to be used as aforesaid that he has paid said White nothing on the said contract with him; but said White claims damages or compensation from him for the non-performance of his said contract with the said White; that said lot was in the possession of a tenant, and he knows said White was put to trouble and to some expense in getting rid of said tenant for the purpose of giving possession thereof to the plaintiff for the purpose aforesaid; and he further proved, that shortly after his contract with the defendant as aforesaid, he entered into a sub-contract with one Emanuel Irons, a competent and responsible brick-mason, for supplying the said lime and labor, and laying the bricks to be supplied by the plaintiff as aforesaid; and that the price to be paid by the plaintiff to the said Irons for materials and labor to be furnished by him was at the rate of three dollars and fifty-eight cents per thousand of bricks to be laid by him; that he, the plaintiff, has paid nothing to the said Irons on the said contract; but the said Irons claims damages or compensation for the non-performance of his said contract with the said Irons; and he knows that said Irons, in part execution of said contract, hauled to the said site one hundred and fifty loads of sand, and dug out of the bank some seven hundred other loads of sand for the purpose of hauling the same to the said site. The plaintiff then read in evidence the ordinance of the defendant approved April the 5th, 1861. And also read the following letter from George Wm. Brown, at the time mayor of the city of Baltimore:

"MAYOR'S OFFICE,

Baltimore, April 8 th, 1864.

Sir:--I hereby give you notice that an ordinance has been passed, by the Mayor & City Council of Baltimore, directing that the building designed for an alms-house, heretofore commenced on the farm purchased of A. W. Goldsborough, be discontinued and stopped.

Respectfully,

GEO. WM. BROWN, Mayor.

To L. B. Rittenhouse."

And further to sustain the issue on his part, and to prove his ability and readiness to perform his aforesaid contract with the defendant, he proved that for the last fifteen years he has been engaged in the manufacture of bricks in and near the city of Baltimore, and that at the date of his contract with the said defendant he had machinery and also stock of boards and utensils in quantity to enable him to execute his said contract, and that he had on hand six hundred thousand bricks of his own manufacture, which were of ready sale in the market, but which he retained in hand in consequence of said contract, and to enable him to supply any demand which the defendant might make on him for bricks before he could commence making bricks on the lot of said White; and that after the repealing ordinance had been passed and notice thereof given to him as aforesaid, he sold said bricks at prices averaging about one dollar and fifty cents per thousand less than he could have realized by a sale of them in November, 1860. And, thereupon, the plaintiff, further to support his claim for damages on the third item of his bill of particulars, asked the said witness, Rittenhouse, what would have been the cost to him of manufacturing bricks of the quality required for the fulfilment of his aforesaid contract with the defendant on the said lot of the said White in the year 1860, and what would have been the cost of hauling said bricks from the said lot to the site of the alms-house building aforesaid? But the said defendant objected to said question, and the evidence offered on the part of the said plaintiff being so offered and admitted, subject to exception the said defendant further prayed the Court to exclude all such parts of said evidence as related to the said contracts between the said plaintiff and the said White and the said Irons, and as relates to damages claimed by the said plaintiff by reason of the repeal of the ordinance first aforesaid, offered in evidence, and of the refusal of the defendant to permit the plaintiff to proceed in the execution of his contract with the defendant as aforesaid, after the passing of the said repealing ordinance.

Whereupon the Court, on said objection and prayer of the defendant as aforesaid, refused to permit the said question to be put to the witness, and withdrew from the consideration of the jury all said parts of the evidence so given to the jury, and now excepted to by the defendant as aforesaid,--being of opinion, and so declaring, that the said repealing ordinance was passed by the said defendant in exercise of its legislative power, and that the said repeal determined its obligation to proceed further in the execution of the contract made between them and the said plaintiff, so entered into under the provisions of the ordinance first aforesaid, and that although the said plaintiff might recover on the said first item of claim in the bill of particulars any damage which he had actually sustained by reason of the contract so entered into between him and the said defendant, and before the enactment of the said repealing ordinances, and whilst said contract was in force, were not entitled to claim in this action any damage as indemnity against any loss to which he may have become liable to the said White and the said Irons, by reason of his said subsidiary contracts with them, and there is no evidence of damage actually incurred by him by reason thereof, and that the said plaintiff is not entitled to recover any probable profits which he might have realized if he had...