Sisson v. City of Baltimore

• Decision Date: 25 March 1879
• Citation: 51 Md. 83
• Parties: MARTIN A. SISSON and NICHOLAS ACKER, use of ROBERT D. MORRISON v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

51 Md. 83

MARTIN A. SISSON and NICHOLAS ACKER, use of ROBERT D. MORRISON v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

March 25, 1879

APPEAL from the Superior Court of Baltimore City.

The case is stated in the opinion of the Court.

Exception.--At the trial before the Court without a jury, the plaintiffs offered the following prayers:

1. If the Court shall find from the evidence, and the admitted facts, that the contract offered in evidence for the furnishing of the marble, and for the doing of the marble work on the New City Hall, was duly executed by the Building Committee of said New City Hall and the plaintiffs, and if the Court shall further find, that the plaintiffs did extra work on said New City Hall, as stated and set forth in the agreed statement of facts and in the evidence, and if it shall further find, that George A. Frederick, Esq., at the time of the execution of said contract, and of the doing of said extra work, was the architect of the said New City Hall and if the Court shall further find, that the said George A Frederick measured the said extra work, and according to and in pursuance of the provisions of said contract, valued the said extra work, at the sum of $46,852.29, that then upon such valuation by said Frederick, the defendant became and was indebted to the plaintiffs for and on account of said extra work, in the said sum of $46,852.29, and the verdict must be for the plaintiffs for such sum as the Court shall find to be the difference between said sum of $46,852.29, and such sum as the Court may find has actually been paid to the plaintiffs by the defendant, on account of said extra work less the sum which the Court may find from the evidence was received by the plaintiffs for the material of the railroad track mentioned in the evidence; and this, notwithstanding the Court may find the agreement of submission to A. B Mullett, and the decision of the referee thereunder, and the payment and acceptance of the amount of the award of said referee, as mentioned in the evidence and the agreed statement of facts; and notwithstanding the Court may further find that the plaintiffs agreed with the said Building Committee, that the cost of laying the railroad track, mentioned in the evidence, to wit, the sum of $2506.04, should be deducted from the sum due the plaintiffs under the said contract.

2. That the agreement of submission to A. B. Mullett, mentioned in the evidence and in the agreed statement of facts as having been made between the Building Committee of the defendant and the plaintiffs, is of no effect, and is not binding on the plaintiffs, as the same was made by the said Building Committee, without authority in fact or in law, and the Court must disregard the said agreement of submission, and all proceedings thereunder, in making up its verdict.

3. That the agreement of submission to A. B. Mullett, mentioned in the evidence, is of no effect, and is not binding on the defendant, there having been no consideration for same, and the Court must disregard the said agreement of submission, and all proceedings thereunder, in making up its verdict.

4. That the agreement mentioned in the evidence between the Building Committee of the defendant and the plaintiffs, by which it was agreed that the said Building Committee should deduct from the sum due the plaintiffs under the contract offered in evidence, the cost of laying the railroad track mentioned in the evidence, to wit, the sum of $2506.04, is of no effect, and is not binding on the plaintiffs, as the same was made by the said Building Committee without authority in fact or in law; and the Court must disregard the said agreement in making up its verdict, except in so far as the Court may allow the defendant a credit for the amount received by the plaintiffs for the old material of said track.

5. That the agreement mentioned in the evidence between the Building Committee of the defendant and the plaintiffs, by which it was agreed that the Building Committee should deduct from the sum due the plaintiffs under the contract offered in evidence, the cost of laying the railroad track mentioned in the evidence, to wit, the sum of $2506.04, is of no effect, and is not binding on the plaintiffs, the same having been without consideration, and the Court must disregard the same in making up its verdict, except in so far as the Court may allow the defendant a credit for the amount received by the plaintiffs for the old material of said track.

6. If the Court shall find that at the time of the giving of the receipt mentioned in the evidence by the plaintiffs to the defendant, the plaintiffs agreed to allow the Building Committee to retain from the sum due the plaintiffs under the contract mentioned in the evidence, the sum of $2506.04, being the cost of laying the track mentioned in the evidence; and if the Court shall further find, that the plaintiffs consented to such retention and gave the said receipt in order to induce the said Building Committee to make a settlement with the plaintiffs under their said contract, which the said committee otherwise refused to do, then the said agreement for the retention of said sum of $2506.04, and the giving of said receipt, were not voluntary, and do not bind the plaintiffs; and the Court in making up its verdict must disregard the said agreement, except in so far as the Court may allow the defendant a credit for the amount received by the plaintiffs for the old material of said track.

7. If the Court shall find that at the time of the giving of the receipt mentioned in the evidence by the plaintiffs to the defendant, the plaintiffs agreed to allow the Building Committee to retain from the sum due the plaintiffs under the contract mentioned in the evidence, the sum of $2506.04, being the cost of laying the track mentioned in the evidence. And if the Court shall further find, that the plaintiffs consented to such retention and gave the said receipt for the sole purpose of inducing the said committee to make a settlement with the plaintiffs under their said contract, then the said agreement for the retention of the said sum of $2506.04, and the giving of the said receipt, were not voluntary, and do not bind the plaintiffs, and the Court in making up its verdict must disregard the said agreement, except in so far as the Court may allow the defendant a credit for the amount received by the plaintiffs for the old material of said track.

The Court, (DOBBIN, J.,) rejected all of the said prayers. The plaintiffs excepted, and the finding and judgment being for the defendants, the plaintiffs appealed.

The cause was argued by consent before BARTOL, C.J., ALVEY and ROBINSON, J., and the decision was participated in by BOWIE, BRENT and MILLER, J.

Robert D. Morrison, for the appellants.

The appellants contend that the agreement to submit to the arbitration of Mullett was absolutely void, and that the appellants are entitled to recover the difference between the valuation of the official architect and that of Mullett, because--

The agreement to submit was without consideration.

When the work was done and valued by the architect, the plaintiffs had a fixed, definite, and established claim. There was nothing to dispute about, and nothing to submit. Their claim was liquidated. The valuation of Frederick was final and conclusive. Mosby vs. Leeds, 3 Call, ( Va.,) 380; Wilson vs. York & Md. Line R. R., 11 G. & J., 58; Ramsburg vs. McCahan, 3 Gill, 341; 82 Penn., 267; McAuley vs. Carter, 22 Ill., 53; Oakes vs. Moore, 24 Me., 214; Robinson vs. Fiske, 25 Ib., 401; Baird vs. United States, 6 Otto, 430; Wehr, et al. vs. Germ. Evan. Luth. St. Matthew's Cong. of Balt., 47 Md., 177.

The agreement to submit to the arbitration of Mullett was void, for want of mutuality.

The Building Committee had no power or authority to submit the rights of the city to the decision of a stranger, and the city would not have been bound to pay the plaintiffs any more than Frederick's valuation, if that of Mullett's had been greater. Morse on Arbitration, 376-380; Fenbish vs. Hall, 8 Maine, 315; Lamar vs. McNamee, 10 G. & J., 116; 1 Dillon on Mun. Corp., 381; Freeman on Judgments, secs. 116, 117, 159, and authorities there cited, (2 nd Ed.;) M. & C. C. of Balt. vs. Reynolds, 20 Md., 1; Munn vs. Richardson, 66 Ill., 481; M. & C. C. of Balt. vs. Eschbach, 18 Md., 276; Porter vs. M. & C. C. of Balt., 18 Md., 284-289: Horn vs. M. & C. C. of Balt., 30 Md., 218; St. John's College vs. State, 23 Md., 63; Md. Hospital vs. Foreman, 29 Md., 524; Kirkley vs. M. & C. C. of Balt., 29 Md., 111.

As to how corporations may submit to arbitration, see Redman on Awards, 8.

The fact that the sustension of this agreement of submission would result to the pecuniary advantage of the city cannot influence the decision. Paine vs. France, 25 Md., 172; M. & C. C. of Frederick vs. Groshon, 30 Md., 436; Perkins vs. Proctor, 2 Wilson, 382, 384.

No party can be estopped by mere acquiescence, unless others have acted upon that acquiescence to their detriment. Cecil vs. Cecil, 19 Md., 72, 79; Alexander vs. Walter, 8 Gill, 247; Viner's Abridg't, Title Estoppel, sec. A, 2; Bramble, use of State vs. Twilley, 41 Md., 435; Horner vs. Grosholz, 38 Md., 520; 14 California, 280, 366-7, &c. Bigelow on Estoppel, 47; Cumberland Coal and Iron Co. vs. Sherman, 20 Md., 117; Mayor, &c. of Balt. vs. Porter, 18 Md., 300.

The appellants contend, that the agreement between the Building Committee and the appellants--that the appellants should pay for the track, was null and void; and that the appellee has no right to retain the price of the same, because--

The said agreement, according to the theory of the plaintiffs' fourth prayer, was made by the said ...