Ætna Indem. Co. v. Waters

• Decision Date: 28 June 1909
• Citation: 110 Md. 673,73 A. 712
• Parties: ÆTNA INDEMNITY CO. v. WATERS.
• Court: Maryland Court of Appeals

73 A. 712

110 Md. 673

ÆTNA INDEMNITY CO.

v. WATERS.

Court of Appeals of Maryland.

June 28, 1909.

[Copyrighted material omitted.]

Appeal from Baltimore City Court; Alfred S. Niles, Judge.

Action by John Waters against the Ætna Indemnity Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The prayers of plaintiff are as follows: "The plaintiff prays the court to rule that, if the court sitting as a jury finds from the evidence that the defendant executed the bond on which this suit is brought, and that the Clarion Concrete Construction Company and John Waters entered into the contract offered in evidence, and mentioned in said bond, and that the roof slabs mentioned in said contract, as shown in the specifications and drawings therein mentioned, had connected therewith as a part thereof a suspended concrete ceiling, the two forming a so-called monolithic construction—that is to say, being so built as to form together one solid piece of concrete—then, by the true construction of the said contract, the Clarion Concrete Construction Company was bound to erect the ceiling mentioned in the evidence; and, if the court, sitting as a jury, finds that said Clarion Concrete Construction Company without just cause refused to erect said ceiling, and that the plaintiff thereby sustained loss and injury, and that the plaintiff further complied with all the conditions contained in the bond on which this suit is brought, that then the verdict must be for the plaintiff.

"The plaintiff prays the court to rule that, if the court sitting as a jury finds in favor of the plaintiff, then in estimating the damages the court shall allow the plaintiff the cost or expense to which the plaintiff was put in completing that portion of the work called for in the contract between the plaintiff and the Clarion Concrete Construction Company, which portion was not performed by said company provided said cost and expense was only the reasonable cost and expense thereof, less such sums as were due. or would have become due, to said company under the terms of said contract in the event that it had completed the same."

The prayers of defendant are as follows:

"(1) There is no evidence legally sufficient, under the pleadings in this case, to entitle the plaintiff to recover, and therefore the verdict of the court sitting as a jury must be for the defendant.

"(2) There is no evidence legally sufficient under the pleadings in this case to entitle the plaintiff to recover more than nominal damages.

"(3) The defendant prays the court to instruct itself, sitting as a jury, that if it finds from the evidence in this case that, immediately after the defendant was notified of the alleged failure and default of the said Clarion Concrete Construction Company to complete the work under its said contract with the plaintiff, the defendant offered to sublet or complete the same so far as to fully perform and complete all the work specified in the clause of the said contract, which reads as follows: 'Columns, beams, floor and roof slabs, stairs, skylight sides, concrete foundations, concrete underfloors, top finish, asphalt under cells, cement floor finish at stair corridor, safety treads on stairs, all in the new female dormitory of the Maryland Penitentiary as shown on the drawings and described on the specifications prepared by Charles M. Anderson, architect.' —but the said plaintiff refused to accept such performance on the part of the defendant unless the defendant would also agree to construct a certain concrete ceiling in the said female dormitory, then under the pleadings in this case the verdict must be for the defendant.

"(4) The defendant prays the court to instruct itself, sitting as a jury, that if it finds from the evidence in this case that the said Clarion Concrete Construction Company, or its receiver, offered to complete and perform all work specified in the building contract offered in evidence by the plaintiff in the clause of said contract, reading as follows: 'Columns, beams, floor and roof slabs, stairs, skylight sides, concrete foundations, concrete underfloors, top finish, asphalt under cells, cement floor finish at stair corridor, safety treads on stairs, all in the new female dormitory of the Maryland Penitentiary' * * *—and the said plaintiff did refuse to accept performance of the said work unless the said construction company, or its receiver should likewise agree to construct and complete a certain ceiling, or any other work not mentioned in the above-recited clause of said contract, then, under the pleadings in this case, the verdict must be for the defendant.

"(5) If the court shall find that the plaintiff refused to permit the Clarion Concrete Construction Company or the defendant to complete the work called for in the contract between said construction company and the plaintiff, referred to in the bond sued upon in this case, unless the said construction company or the defendant would construct a concrete ceiling for the new female dormitory of the Maryland Penitentiary, then under the pleadings in this case the verdict must be for the defendant.

"(6) If the court shall find that the contract between the plaintiff and the Clarion Concrete Construction Company of Baltimore city, dated September 18, 1906, which is in evidence, was the contract referred to in the bond sued upon in this case, then, by the true construction of said contract, the said construction company was under no obligation to construct a ceiling for the new female dormitory of the Maryland Penitentiary mentioned in said contract.

"(7) There is no evidence legally sufficient to sustain a verdict for the plaintiff upon the issue joined upon the surrejoinder to the third rejoinder to the first replication to the eighth plea, and therefore the verdict upon that issue must be for the defendant.

"(8) There is no evidence legally sufficient to sustain a verdict for the plaintiff upon the issue joined upon the surrejoinder to the fourth rejoinder to the first replication to the eighth plea, and therefore the verdict upon that issue must be for the defendant.

"(9) There is no evidence legally sufficient to sustain a verdict for the plaintiff upon the issue joined upon the surrejoinder to the third rejoinder to the first replication to the ninth plea, and therefore the verdict upon that issue must be for the defendant.

"(10) There is no evidence legally sufficient to sustain a verdict for the plaintiff upon the issue joined upon the surrejoinder to the fourth rejoinder to the first replication to the ninth plea, and therefore the verdict upon that issue must be for the defendant.

"(11) If the court, sitting as a jury, shall find from the evidence that the third payment mentioned in the contract, dated September 18, 1906, between the plaintiff and the Clarion Concrete Construction Company, which is in evidence, was made on the 28th day of November, 1906, and that the third reinforced floor mentioned in said contract was not put in place by said Clarion Concrete Construction Company until the 21st day of January, 1907; and that no claim for any allowance for such delay was presented in writing to Charles M. Anderson, architect, by said Clarion Concrete Construction Company on the ground that the same was due to the act, neglect, or default of the plaintiff or of said architect or of any other contractor employed by the plaintiff upon the work at the Maryland Penitentiary, or by any damage caused by fire or other casualty for which said concrete company was not responsible under said contract (and there is no evidence legally sufficient to prove any such presentation of written claim to said architect); and that such delay as it occurred came to the knowledge of the plaintiff or of his foreman authorized to oversee the said work; and if the court shall further find from the evidence that prior to the 5th day of January, 1907, the said Clarion Concrete Construction Company failed to have a competent man in charge of the work under its said contract with the plaintiff, and put concrete into the molds before the molds were plumbed and lined up, and before they were sufficiently propped up to prevent the mold from swagging, and that putting the concrete into molds in such a manner was improper construction; and that such failure of said Clarion Concrete Construction Company to have a competent man in charge of said work, and the other acts on the part of the Clarion Concrete Construction Company, hereinabove mentioned, came to the knowledge of the plaintiff on or before the 5th day of January, 1907; and if the court shall further find from the evidence that prior to the 9th day of January, 1907, a partition at the east end of the chapel wing of the addition to the Maryland Penitentiary mentioned in said contract, part of the work called for by said contract, bulged out of plumb, so that the same would have to be trimmed to make a plumb and parallel wall in thickness, according to the plans and specifications prepared by said architect, and referred to in said contract, and that such bulging was caused by the spreading of the mold because the mold was not properly stayed by said Clarion Concrete Construction Company, and that all of said facts came to the knowledge of the plaintiff on or before the 9th day of January, 1907; and that prior to said 9th day of January, 1907, the plaintiff by his agents called the attention of the representatives of the Clarion Concrete Construction Company to the said bulging of said partition; and that the said Clarion Concrete Construction Company had promised to attend to the same, but had not, up to said 9th day of January, 1907, remedied said defect; and that the plaintiff prior to said 9th day of January knew of said facts; and if the court shall further find from the evidence that on or before the 9th day of January, 1907, the other defects in the work of said Clarion Concrete Construction Company, under...