Berkley v. Wilson

Fowler, J., delivered the opinion of the Court. The appellant made a contract with one Bunnecke to build a house on Park avenue in Baltimore, according to plans and specifications to be prepared by the appellees, who are architects. The work was done by Bunnecke under their supervision, inspection and direction. They agreed to and in fact prepared the plans and specifications, and also supervised and examined the work as it progressed and until its completion.

In the year 1890 the appellant being dissatisfied with the work done by Bunnecke, as well as with the plans and specifications prepared by the appellees, and with their supervision of the work, brought two suits, one against the appellees and the other against Bunnecke. In his action against the latter, the appellant claimed damages for the violation by him of the building contract. Bunnecke by his pleas admitted the contract, as alleged in the narr., but denied that he had violated it or any part of it, or that by any breach of covenant he had caused the appellant to suffer any damage whatever. The case against Bunnecke was tried upon its merits before a jury, and the result was a verdict for one cent damages, and a judgment of non pros.

The case now before us was also tried upon its merits, as we think, and the verdict of the jury was for the appellees. During the trial, the plaintiff, now appellant, reserved two exceptions. Both of them, however, raised the same question, namely, that which is presented by the plaintiff’s demurrer to the defendants additional plea, which is a plea against the further continuance of the suit, puis darrein continuance, so far as said suit rests upon the alleged violation of contract by Bunnecke. The second and third pleas having been withdrawn, and the demurrer to all the other pleas having been sustained, the case was tried upon the general issue, and the issue joined upon the replications to the plea just mentioned.

By this plea, the former suit ²²¹ against Bunnecke to recover damages for his alleged breach of the building contract, the recovery therein of a verdict and the tender by Bunnecke of the amount of such verdict before the trial of this case are set up by the defendant as a bar to so much of the damages here sued for as were recovered in the other suit. The demurrer to this plea was overruled, whereupon two replications to it were filed. The first alleged that the damages claimed by him in this suit are not damages claimed for the same matters set out in said suit against Bunnecke; and the second asserted that the appellees were the supervising architects employed by him to superintend the building, and that it was their duty to see that no improper work was done, or defective and improper materials furnished by Bunnecke; that they negligently and carelessly approved of work done and materials furnished by Bunnecke, and wrongfully accepted said work, whereby his right of action against Bunnecke was injuriously affected, and whereby he sustained damages not recoverable against said Bunnecke, and that the damages claimed in this suit are not the same damages, nor are they covered by or included in the former suit against Bunnecke. Issue was joined upon these replications.

The first exception is based upon the refusal of the trial Court to exclude from the jury the record in the former case against Bunnecke, and the second exception arises upon the defendant’s second and fourth prayers, which were granted. These prayers both instructed the jury substantially that if they find the fact set forth in the additional plea, they must confine their attention to the question whether the appellees exercised reasonable skill and care in the preparation of the plans and specifications, and the superintendence of the erection of the building by Bunnecke, thus, in effect, telling them that as a matter of law the plaintiff could not recover under the narr. in this case, any damages for which he sued and recovered in the other suit, and which had been duly tendered. It appears, therefore, that the question raised by the demurrer, and the two exceptions is ²²² the same in substance. Is the record in the Bunnecke case admissible in evidence in this case, and if so, what is its effect ?

We will consider the question as presented by the demurrer to the plea puis darrein continuance. As wTe have already seen, the former suit against Bunnecke was based on his violation of the building contract, while this suit appears by the allegations of the narr. to have been brought for the purpose not only of recovering damages from the defendants for their own alleged negligence as architects, but also to recover from them damages