Walsh v. Jenvey
| Citation | 36 A. 817,85 Md. 240 |
| Parties | WALSH v. JENVEY. |
| Decision Date | 24 February 1897 |
| Court | Maryland Court of Appeals |
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.
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 plaintiff's first prayer. In Railway Co. v. Basshor, 82 Md. 405, 33 A. 635, in which there was, as here, a special contract and a suit on the common counts, it was said: "The contract was offered in evidence without objection, and, being properly before them, the jury had a right to consider it as part of the evidence in the case; and it was accordingly held that the compensation fixed by the contract was a proper measure of damages. To the same effect is Appleman v. Michael, 43 Md. 273.
It was also objected that this and the other two prayers of the plaintiff assume the fact of acceptance by the defendant. But this question is not properly before us, inasmuch as the special exception on which it must rest is not contained in the bill of exceptions certified by the trial judge. Nor do we think the first prayer is properly subject to the objection that it omits all special reference to the testimony in regard to acceptance. The prayer is based upon the testimony in the case, and, if the defendant had...
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