Black v. Woodrow

Alvbt, J., delivered the opinion of the Court. In this case, Woodrow and Richardson sued Black on a contract for the building of a house by the former for the latter. The declaration, as originally filed, contained six counts; the first four being common counts, for work and labor, for materials provided, for money paid, laid out and expended, and for goods bargained and sold ; and the two remaining counts being framed on the special agreement. By the first of these special counts, it is alleged that the appellees, the plaintiffs below, agreed with the appellant to build him a house on his farm, for which the latter agreed to pay to the former six thousand dollars; and that, in pursuance of the agreement, appellees commenced to build the house, and expended large sums of money thereon, and that they were ready and willing to comply with their contract, and complete the house in accordance therewith, but that the appellant prohibited and forcibly prevented them from so doing, and compelled them, at great expense, to take away the materials by them provided for the building of such house; and that the appellant refused, and still refuses, to pay the appellees for the work and materials provided, to their damage of six thousand dollars.

By the second special count, being the sixth count in the declaration as originally filed, it is alleged that, the appellees and appellant agreed together that the former would build for the latter a frame house on his farm, in the manner and according to the specifications stated and set forth, and that the appellees, in pursuance of the contract, commenced and progressed in the work of erecting ²¹¹ such house, and expended large amounts of money in providing materials therefor ; and although the appellees were then and there ready and willing and anxious to comply with the contract in every particular, and to build the house in every respect in exact accordance with the contract, they were prevented from so doing by the express orders of the appellant, whereby they sustained damage to the amount of six thousand dollars. The four common counts were stricken out by consent after the jury were sworn ; and, to the two special counts, the appellant pleaded that he did not commit the wrong alleged ; a plea wholly inappropriate to this action, but, as no objection was taken to it in the Court below, wo must, to give it any effect at all, suppose that it was intended to traverse the breaches assigned in the two counts to which it was pleaded. In the course of the trial in the Court below three bills of exception were taken by the appellant; two of them to rulings upon questions of evidence, and the third to rulings in respect to the prayers offered by the appellant. The verdict being against the appellant, he also moved in arrest of judgment, and assigned as reasons for the motion: 1st, that the amount of the verdict exceeded the amount claimed by the bill of particulars; 2ndly, that the declaration failed to allege a tender or offer of performance, or a sufficient excuse for non-performance, of the contract by the appellees; and, 3rdly, that the declaration was in other respects defective and insufficient.

This motion in arrest, going as it does to the right of the appellees to maintain the action on the present declaration, will be first considered. And first, as to the amount of the verdict being in excess of the amount claimed by the particulars of demand. It is clear, we think, that the motion in arrest cannot be sustained on this ground. The bill of particulars makes no reference to any particular count in ²¹² the declaration; and it was filed when the declaration embraced the common counts which were afterwards stricken oat.

It. does not appear to have been the intention of either the appellant in demanding the bill of particulars, or the appellees in filing it, to make it extend to any count in the declaration to which it was not reasonably and properly applicable. As a general rule, a bill of particulars, unless restricted to some particular count, applies to all the counts of a declaration, if they be of a character to require such aid, in order to notify the defendant of the nature and extent of the plaintiff’s claim. Such were the cases of Carter vs. Tuck, 3 Gill, 250 , and Scott vs. Leary, 34 Md., 389 . In both those cases the declaration contained only the common counts in assumpsit and where the particulars were properly demandable with reference to them all.

But it is only “where the pleading is so-general as not to give sufficient notice to the opposite party of the evidence to be offered in support of it,” that a bill of particulars can be required. Code, Art. 75, sec. 22, sub-sec. 107. This criterion prescribed by the Code is but the expression of the previous rule of practice. In cases where the declaration is special, and disclosed the nature and extent of the demand, as in cases of counts upon promissory notes, or bills of exchange, there is no right in the defendant to require greater particularity than the count affords.

In this case, the bill of particulars was proper in reference to the common counts, and, perhaps, to the fifth count, as that count goes only for the work and labor, and materials furnished under the contract. But as to the sixth count, the particulars were unnecessary, and were not demandable, as the count itself was special, setting out fully the contract, and alleging as a breach the appellant’s prevention of performance of the contract by the appellees, and the consequent damage sustained by them. The count, therefore, furnished sufficient notice of the ²¹³ nature and character of the claim, and of the evidence required to support it. This is all that a defendant has a right to demand, in regard to the certainty of the plaintiff’s claim.

Wherever, says Mr. Tidd, (Pr. 597,) the particulars of the demand are disclosed in the declaration, as in special assumpsit, covenant or debt on articles of agreement, die., or in actions on matters of record, an order to furnish particulars is unnecessary. And it has been expressly decided that the Court will not compel a plaintiff suing for the breach of an agreement, and assigning by way of special damage, that he has incurred certain expenses, to furnish particulars of such special damage. Retallick vs. Hawkes, 1 M. & W., 573. See also Fisher vs. Wainwright, 1 M. & W., 480; Stannard vs. Ullithorne, 3 Bing.

N. C., 326, and Day vs. Davies, 5 C. & P., 340. And Mr. Evans, in his Maryland Practice, p. 256, states the rule to be, that “ where the declaration sufficiently discloses the particulars intended to be relied on, a bill of particulars is not necessary or allowed. And if a bill of particulars be actually given, it will produce no effect; but the party may still prove anything which he might have proved, had there been no bill of particulars.” It follows, therefore, as the sixth count was of a character not to require the aid of a bill of particulars, and the bill of particulars furnished not professing to apply to it, the appellees’ right to recover under this count, was in no manner restricted by such particulars, and consequently, the first ground for the motion in arrest fails, even if such question could, in any case, be properly raised on suck motion; a technical question that we do not now decide. 2. Then, as to the second and third grounds for the motion, namely, that there is no sufficient allegation of tender or offer of performance, or of excuse for nonperformance of the contract, by the appellees, and that the declaration is in other respects insufficient. ²¹⁴ By the fifth count in the declaration, it is alleged, as we have seen, that the appellees were ready and willing to comply with the contract, and to complete the house, but that the appellant prohibited and forcibly prevented them from so doing, and compelled them to desist from the work; and, by the sixth count, it is alleged that the appellees were then and there ready, and willing, and anxious to comply with the contract in every particular, but that they were prevented from so doing by the appellant.

Now, it is certainly clear, that the appellant by preventing the appellees from performing their part of the contract, committed a breach of it, for which he is liable. It is said however, that the contract is silent as to any promise by the appellant to suffer or allow the house to be built; and that his only express promise, was to pay the price agreed on, part while the house was in course of erection, and the balance after its completion according to contract; and, that as the appellant could elect to have the house built or not, as he thought proper, and having elected not to have it built, the condition alone upon which the appellees could sue upon the contract as subsisting has never been performed by them, namely, the erection of the house according to the contract, and, consequently, there has been no such breach assigned as entitles them to recover on the contract, whatever might be their right to recover in general indebitatus assumpsit, as for work and labor done and materials furnished. That the only breach for which the appellant can be liable on the contract itself, as he contends, is the nonpayment of the agreed price for the building of the house, and as the house has not been built, the declaration shows no such breach of the contract on the part of the appellant as will render him liable to the appellees in this action. With respect to the proposition that the appellant was not bound to have the house huilt, it is certainly true, ²¹⁵ that the appellees could not persist in building the house against the consent of the appellant, and in defiance of his express order to desist; but with respect to the other proposition, that there was no promise of the appellant to allow it to be built according to the contract, and that consequently, his prevention constituted no breach, that cannot for a moment be conceded.

It not unfrequently occurs, that contracts on their face and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on tbe other party, such corresponding and correlative obligation will be implied. Thus, if the act to be done by the party binding himself can only be done upon a corresponding act being done or allowed by the other party, an obligation by the latter to do or allow to be done the act or things necessary for the completion of the contract will be necessarily implied. Churchward vs. The Queen, 6 B. & S., 807. And among tbe instances given of such implied obligation, is the case where A. covenants or contracts with B. to buy an estate of the latter, at a given price, there, although the contract may be silent as to any obligation on the part of B, to sell, tbe law implies a corresponding covenant or contract by him to sell and convey the estate.

Pordage vs. Cole, 1 Wms. Saund., 319. Indeed, no better instance of the proper application of the principle could be furnished than the present case. The appellees agreed with the appellant to build for the latter a house on his land, for a certain price, part to be paid while the house was in course of erection, but the larger part of the price was not to be paid until tbe bouse was completed; and although the appellant could not be compelled to have the house built against his consent, yet, notwithstanding ²¹⁶ the contract is silent as to the appellant’s promise that he would suffer the house to be built, the agreement with the appellees for the building of the house clearly implies that he would allow that to be done, without which it would be impossible for the appellees to do what they had agreed to do.

To allow or suffer the house to be built was the corresponding or correlative obligation of the appellant, implied bylaw, to the obligation of the appellees to build the house, as expressed by the contract; and for any breach of this implied promise or obligation by the appellant, he is equally liable as upon an express promise. The only question is, whether a sufficient breach of this implied obligation has been properly assigned in the declaration before us. In the case of Cort & Gee vs. The Ambergate, &c. R. Co., 17 Adol & Ell., N. S., 127, where there was a contract for the manufacture and supply of a certain quantity of railway chairs by the plaintiffs for the defendants, to be paid for after delivery, and the defendants, having accepted and paid for a portion of the chairs, gave notice to the plaintiffs not to