A. & A. Masonry Contractors, Inc. v. Polinger

Smith, J., delivered the opinion of the Court. Appellant A. & A. Masonry Contractors, Inc. (A. & A.) sued appellees, Howard Polinger, et al. (Polinger) for labor and materials furnished in connection with construction of an apartment hotel in Montgomery County for Polinger. Polinger filed a counterclaim. The matter was removed to Dorchester County for trial where a finding was made in favor of A. & A. A. & A. appeals to us contending, (1) that it should have received judgment for even more, having particular reference to a claim for $9,328.42; (2) that the trial court failed to include interest in the judgment in favor of A. & A.; and (3) that the trial court failed to direct the clerk to enter the judgment to carry interest.

For procedural reasons we shall be obliged to dismiss the appeal. To avoid a further appeal to this Court we shall indicate our views relative to liability and procedure pursuant to Maryland Rule 885. I. On the matter of the additional claim of A. & A. we adopt the pertinent portion of the opinion of Judge Mace in the trial court in which he said: “I find that by proposal dated March 24, 1965, plaintiff undertook to do certain masonry work on an Apartment-Hotel known as Highland House, located in Chevy Chase, Maryland, which was being constructed by the defendants. The proposal in the amount of $205,000 was accepted by defendants on April 7, 1965, although, there ²⁰¹ were further discussions.

At that time, the defendants inserted two paragraphs on the bottom of page two of the proposal relating to the setting of Cast Stone and the incorporation of certain conditions which appear on a printed sheet attached to the agreement. On May 13, 1965, at a meeting between the parties or their representatives, an additional two paragraphs were inserted at the bottom of page two of the proposal, and initialed by the parties. The paragraphs read as follows: ‘This Contract for Seaboard Glazed tile is for furnishing the 1%" thick 18" x 24" Ceramic Veneer Design Facing as shown on architects drawings No. 9, 15,16, 26, 27 dated 9/14/64. ‘This contract does not include a low fire glaze.’ (Emphasis added.) “The biggest item in dispute is Change Order No. 23, in the amount of $9,382.42, and is made up of the terra cotta wall facing panels referred to in the two quoted paragraphs. Plaintiff maintains that it is extra to the basic proposal, and defendants claim that it is included in the basic proposal and contract.

It is conceded that plaintiff typed the two paragraphs, and that defendant inserted in ink the phrase ‘for Seaboard Glazed tile’, which appears as an interlineation in the first of the two paragraphs. Both parties took the position that the contract was clear and unambiguous in their respective favor. The Court, in an effort to throw additional light on the general intention of the parties, heard testimony and admitted documentary evidence relating to the circumstances and the actions of the parties concerning the terra cotta work. This evidence, while extensive and conflicting, does not change the findings of this Court as based ²⁰² on the contract itself, and within its four corners.

It is conceded that the proposal of March 24, 1965, was the only contract between the parties. The two paragraphs in question each refer to ‘this contract’, and simply set forth the size of the terra cotta to be furnished, and by the insertion in ink by the defendant, the manufacturer’s name. Nowhere, is there any reference to the tile as an extra, nor any indication that the two paragraphs are intended to comprise a separate contract for the tile. The first sentence of the basic contract provides: ‘We propose to do all of the masonry work in accordance with the Architectural Drawings identified as Sheet 1 thru Sheet 29 inclusive and Structural Drawings identified as Sheet SI thru S17, all dated September 14, 1964, prepared by your Architect Berla & Abel, in accordance with Division 4 “Masonry & Cast Stone”, of the Specifications bearing no date, Section 4A paragraphs 1 thru 12, for the Apartment-Hotel, West Chevy Chase, Maryland, known as Highland House for Messrs.

Milton & Howard Polinger, being constructed by you at Wisconsin Avenue and High Street, West Chevy Chase, Maryland, for the sum of TWO HUNDRED FIVE THOUSAND DOLLARS ($205,000.).’ (Emphasis added.) “The foregoing provision incorporates specific drawings which were in evidence, and which showed by drawing, and by written words, the specific location and the specific wall areas to be faced with terra .cotta veneer panels, along with the other masonry. work, describing, the terra cotta facing to be furnished, including the method of installing the same. This information is specifically set forth in Division 4 of the specifications.