Walsh v. Jenvey

Citation85 Md. 240,36 A. 817
PartiesWALSH v. JENVEY.
Decision Date24 February 1897
CourtCourt of Appeals of Maryland
36 A. 817
85 Md. 240

WALSH
v.
JENVEY.

Court of Appeals of Maryland.

Feb. 24, 1897.


36 A. 818

Appeal from circuit court, Allegany county.

Action by Frank B. Jenvey against William E. Walsh. From a judgment for plaintiff, defendant appeals. Reversed.

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

Ferd Williams, for appellant.

George A. Pearre, for appellee.

FOWLER, J. This was an action on the common counts for work done and materials furnished. The defendant employed the plaintiff to rebind and clean his law books, which had been damaged by fire and water. Both parties agree there was a special contract, but they differ as to its terms. In the view we have taken this difference is not material, for it appears from the testimony of both parties that the work contracted for was in fact completed, and that the books were delivered to the defendant. The defense set up by the defendant is that, the special contract not having been fully executed, the plaintiff cannot recover on the common counts. This is undoubtedly true as a general proposition, but we do not think it has any application to the facts of this case; for it is and must be conceded that the contract has been completed, because the defendant admits that he has in his possession the books which were bound and cleaned by the plaintiff under the special contract, and the complaint is, not that the work has not been fully done, but that it has not been done in a skillful manner, as agreed. The plaintiff, on the other hand, offered evidence to show that the work was done in entire accordance with the contract, and that the books had been delivered to and accepted by the defendant. This suit was brought, therefore, upon this theory, which is amply supported by plaintiff's testimony, which, however, is contradicted by that of the defendant only so far as relates to the character of the work. Having performed his part of the work, and the defendant having accepted the books, the plaintiff unquestionably pursued a proper course in relying on the common counts. Ridgeley v. Crandall, 4 Md. 435.

The contract was before the jury, and if they believed from the evidence that the work was skillfully done, as thereby provided, they could have properly allowed the contract price; and to this effect they were instructed by the plaintiffs first prayer. In Railway Co. v. Basshor, 82 Md. 405, 33 Atl. 635, in which there was, as here, a special contract and a suit on the common counts...

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