Aetna Indemnity, Co. v. John Waters

Schmucker, J., delivered the opinion of the Court. The appeal in this case was taken from a judgment .in favor of the appellee in a suit on a bond given by the appellant as surety for the Clarion Concrete Construction Company. That company, in September, 1906, made a contract with John Waters, a well-known builder in Baltimore City, to furnish the material and do the work for the reinforced concrete construction required in the erection of a dormitory at the penitentiary, which he had undertaken to build for the State ⁶⁸⁷ of Maryland. The bond sued on was given by the appellant to secure the performance of that contract.

In July, 1907, Waters instituted the present suit in the Superior Court of Baltimore City on the bond for an alleged failure of the concrete company to fully perform its contract with him. The case having been tried before the Court without a jury, resulted in a judgment for the plaintiff for $1,655.67, from which the appeal was taken. The pleadings in the case are voluminous and intricate, covering more than twenty pages of the record, and nineteen issues were joined during their progress; but, as the ease was - finally tried on its merits, we can dispose of it here by a consideration of the questions raised by the bills of exception without reviewing the pleadings. The record contains twenty-three bills of exceptions, of which the last relates to the Court’s action on the prayers and instructions to the jury, and all of the others refer to rulings on evidence.

At the close of the case the plaintiff ordered two prayers and the defendant offered twenty-two. They will be set out in the report of the case by the Reporter. The Court refused the plaintiff’s first prayer and granted his second one, and refused all of the defendant’s prayers in the form in which they were offered, but granted the third, eleventh and twentieth after modifying them. The Court also gave two instructions on the law at its own instance.

An examination of the ex'ceptions makes it apparent that the questions raised by them may be conveniently disposed of in classes or groups, in the order adopted on the appellant’s brief in presenting the several propositions upon which it relied to defeat the action in the Court below and on which it now insists as grounds of reversal. Those defenses relate: (3) To the construction of the contract secured by the bond sued on. (2) Failure of plaintiff to notify defendant of acts of the contractor likely to result in loss. (3) Effect of alleged alterations in contract without defendant’s consent. ⁶⁸⁸ (4) To various other questions raised by the 1st, 5th, 12th, 18th and 15th bills of exceptions and the plaintiff’s 2nd prayer. ' ....

The appellant’s main contention on the construction of the contract is that it did not require the Concrete Company to erect the ceiling on the upper story of the building. As' against this view the appellee insists that the expression “roof slabs” found in the contract was intended to include the ceiling under' the roof' and fastened to it. He further insists that, upon a fair interpretation of the entire contract, and the architect’s drawings and specifications' therein referred to, it is plain that the reinforced concrete work contracted for by the Concrete Company.was intended to include the ceiling in question.' The first article of the contract is as follows: “Article 1. The contractor shall and will provide all the materials and perform all the work for the reinforced concrete construction; i. e., columns, beams, floor and roof slabs, skylight sides, concrete foundations, concrete under floors, 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 in the specifications prepared by Charles M. Anderson, architect, which drawings and specifications are identified by the signature of the parties hereto, and become hereby a part of this contract.” The architect’s specifications referred to in Article 1 provide, under the head of Reinforced Concrete, that: “The floors, beams and columns' supporting same, ceilings, roofs and stairways and interior partitions throughout, as shown on plans, to be of reinforced concrete.” They also require that the work should be of “monolithic construction.” It is further provided in the contract that the work is to be done under the direction of said architect, and that his decision as to the meaning of the drawings' and specifications shall be final; also that no alterations shall be made except upon his written order, the amount to be paid by the ⁶⁸⁹ owner or allowed by the contractor by virtue of such alteration to be stated in such order.

There is also a provision that if the contractor should not at any time furnish a sufficiency of skilled workmen or materials of proper quality, or should fail to diligently prosecute the work or to perform any of the stipulations of the contract, then, upon the certification by the architect of such neglect or failure, the owner may, after three days’ written notice to the contractor, provide any such labor or materials and deduct the cost thereof from any money then due or thereafter to become due, and may also, with the approval of the architect, terminate the employment of the contractor and take possession of the premises, with the material, tools and appliances thereon, and finish the work at the expense of the contractor. If, in such event, the expense of the completion as audited and certified by the architect shall exceed the unpaid balance of the contract price, the contractor shall pay the difference to the owner, and such certificate of the arcihtect shall be conclusive upon the parties. The bond of the appellant, on which the suit was brought, is conditioned on the faithful performance of the contract. It also provides that the surety shall be notified in writing of any act on the part of the principal or its agents or employees,, which may involve a loss, immediately after its occurrence,, and must be similarly notified of, and its written consent-secured to, any change or alteration made in the original plans or specifications by the obligee.

The contract and bond having been executed, the Concrete Company began the execution of the work contracted for and had completed the greater portion of it by February 4th, 1907, when it took the position, in a letter to the appellee, that it was not compelled under its contract to construct the ceiling over the upper floor of the building. The appellee stoutly insisting that the contract did call for the construction of that ceiling, the two parties expressed a willingness to have the dispute between them settled by arbitration but as only one of them selected an arbitrator and neither of them ⁶⁹⁰ took further steps in that direction no settlement by that means occurred. On March 28th, 1907, the appellee formally notified the Concrete Company to proceed with the work under the contract which it failed to do. It was on the same day put into the hands of Horace S. Whitman as receiver, on a suit of one of its creditors, by a decree of Circuit Court Ho. 2 of Baltimore «City.

On April 2d, 1907, the appellee notified the appellant that the Concrete Company was not proceeding with its work and that it denied its obligation to construct the ceiling. In response to this notice the receiver, Mr. Whitman, who was also counsel for the appellant, offered to complete the work without the ceiling for which he refused to accept any responsibity. The appellee thereupon, having first notified Mr. Whitman of his purpose, proceeded to have the work completed himself through the agency of other subcontractors. After the work had been finished the architect certified that the cost of its completion by the appellee was $7,995.67, which exceeded the balance of the money not paid to the Concrete Company under its contract by $1,655.67, for which amount the judgment was obtained.

Mention will be made hereafter of certain acts of the Concrete Company likely to result in loss; of which the appellant insists that it did not receive prompt notice, and also of an alleged alteration of the contract without the appellant’s consent, which it contends discharged the bond. We will now consider whether, under a proper construction of the contract, the Concrete Company was bound to construct the disputed ceiling. We agree with the appellant that the provision in the contract that the architect’s decision as to the true construction and meaning of the drawings and specifications shall be final, does not take from the Court and confer upon the architect the power to construe the contract itself. The law is clear that the common right of resort to the Courts for the determination of the rights of parties or the settlement of disputes between them will not be taken away by inference or implication or anything short of a dis ⁶⁹¹ tinct agreement to waive it.

No such agreement is found in the contract before us which in terms limits the architect’s authority to determining the meaning and construction of the drawings and specifications prepared by him but does not submit to his decision the contract rights of the parties. Smith & Sons v. Jewell, 104 Md. 279 et seq.; Isaac v. Dawson, 70 N. Y. App. Div. 232, affirmed in 174 N. Y. 537 ; Baltimore v. Schaub Bros., 96 Md. 554 ; Lauman v. Young, 31 Pa. St. 306; Gubbins v. Lautenschlager, 74 F. R. 167. The question before us is not one of the construction of the drawings and specifications under which the contract is to be performed, although the ascertainment of their true meaning may afford some assistance in its solution.

It is a question of the construction of the contract itself to determine whether, under its provisions, the Concrete Company was under any obligation at all to construct the disputed ceiling. It is familiar law that the construction of written documents is ordinarily one of law for the Court, and if their terms are not technical, ambiguous or obscure parol evidence cannot be resorted to to aid in the construction. Roberts v. Bonaparte, 73 Md. 199 ; Woods v. Williams, 16 Md. 251 ; Cecil Bank v. Farmers’ Bank, 22 Md. 155 ; Needy v. Middlekauff, 102 Md. 183 . But where technical terms are used in a written contract parol testimony may be introduced to' explain their meaning which will then become a question for the jury to whom “the Court will give conditional instructions as to the effect of the contract according as they may find the meaning of such terms to be.” Roberts v. Bonaparte, supra; Leftwitch v. Royal Ins.

Co., 91 Md. 612 ; Badart v. Foulon, 80 Md. 589 . In the last mentioned case this Court in its opinion quoted with approval, from the opinion of Baron Parke in Share v. Wilson, 9 Clark & Finnelly, 355, the following statement. “In the first place there is no doubt that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language as ⁶⁹² when it was written in a foreign tongue; but it is also competent where technical words or peculiar terms, or indeed any expressions are used which at the time the instrument was written had acquired an appropriate meaning, either generally or by local usage or amongst particular classes.” It is equally familiar law, recognized by the cases already cited, that in the construction of contracts Courts look to the language employed, the subject-matter and the surrounding circumstances of the parties who made them so as to carry out their true intent. Applying these principles to the present case, we have first, in point of time, a contract between Mr. Waters and the State for the erection of a penitentiary dormitory according to the drawings and specifications of a designated architect. Those specifications are found to contain the distinct statement: “The floors and beams and columns supporting the same, ceilings, roofs and stairways, and interior partitions throughout to be of reinforced concrete.” We next have the sub-contract, now under consideration, between Mr. Waters and' the Concrete Company by which the latter undertakes to “provide all of the materials and perform all of the work for the reinforced concrete construction” in the dormitory as shown on the drawings and described on the specifications already mentioned.

The items constituting the concrete construction contracted for are not enumerated in precisely the same language in the sub-contract as in the specifications. In the enumeration in the specifications the word “ceilings” is used as well as “floors” and “roofs,” while in that contained in the contract we find no mention of ceilings nor any separate mention of roofs, but two expressions, “floor slabs,” and “roof slabs,” appear there, that are not found in the enumeration contained in the specifications. If from that state of facts it is to be inferred that the Concrete Company was not bound to construct the ceiling on the fourth floor, it would equally follow that it was not bound to construct ceilings on the first, second or third floors, unless some of the expressions, descriptive of the work to be done, ⁶⁹³ employed in the contract he held to include the ceilings on those three floors. In view of the violence of the assumption that the contract did not intend to provide for the construction of any ceilings at all, and also in view of the subject-matter of the contract and the surrounding circumstances, we think "that the learned Judge below correctly permitted the appellee to introduce evidence to show that in concrete construction the expressions “floor slab” and “roof slab” are respectively used in a technical or peculiar sense to designate not merely the floor or roof, but also the ceiling below it, as the roof or floor is constructed at the same time as the ceiling under it, and they together form one integral portion of the entire building.

We are convinced that those expressions were used in a technical .or peculiar sense in the present case from the testimony of Mr. Waters, the builder; Mr. Anderson, the architect, and Mr. Barre, the manager of the Armored Concrete Company, all of whom, from the nature of their occupations, were familiar with architectural