Bluthenthal & Bickart v. May Advertising Co.

Burke, J., delivered the opinion of the Court. The May Advertising Company, the appellee on this record, is a New York corporation. As its name indicates, it is engaged in the advertising business, which it conducts by painting bulletin boards, erecting them along the lines of railroads, and by securing wall space and painting thereon such advertisements on signs as its customers may desire. Carl May is the president and Wilson O. Peed the vice-president of the company.

The office of the company is in New York City, and it has a shop in Pittsburgh, Pa., where sketches are made, and the metal bulletin boards are painted. The appellant, Bluthenthal & Biokart, is a Maryland corporation, and is a blender of whiskies and gin, which it sells under its own trade marks or labels to the trade in a number of S'outhem States. Some of its brands of whiskey are known as Old Joe, Mobile Buck, “Bn” Malt, and Mark Bogers. Aaron Bluthenthal is president and Monroe E. Biekart secretary and treasurer of the company. ²⁷⁹ In the early part of the year 1912 the parties to this case entered into a written contract, the terms of which are found in three letters appearing in the record, under which the appellant employed the appellee to paint from sketches, approved by the appellant, a thousand or more square feet of wall space on locations fi> be selected by the appellee in certain towns and cities in the South.

The contract provided that the work was to be done in a first-class and workmanlike manner, and that the appellant should pay, thirty days after the completion of the showing in each city, the sum of six cents per square foot for the actual number of square feet painted in each city. A list of the cities in which the painting was to be done, as well as the approximate wall space to be painted in each city, appears in the contract. The appellee claimed to have performed its work under the contract in seven of the cities mentioned therein, and demanded payment for the work done. Its claim amounted to $4,632.91.

This claim the appellant refused to pay. The appellee brought suit against it in the Superior Court of Baltimore City and recovered a judgment. This appeal was taken by the appellant, the defendant below, from that judgment. The suit was brought under the Speedy Judgment Act, and the declaration contained the common counts, and one special count, which set out the contract between the parties and alleged the completion of the contract in certain specified cities; the refusal of the defendant to pay for any of the work done; and that the defendant had directed the plaintiff not to proceed with the work in any of the other cities mentioned in the contract.

At the trial the appellee confined its claim for work actually done in pursuance of the contract. It did not seek to recover for the act of the defendant in preventing, as alleged, the performance of the contract in other cities. The contract contained a number of provisions which, are not involved in this controversy. The three provisions which are involved are these: (1) That the plaintiff was personally to select the locations, and to use its best judgment in so doing.

(2) That the painting was to be done in a first- ²⁸⁰ class and workmanlike manner. (3) That the wall display should make a proper and satisfactory showing. These obligations were expressly assumed by the plaintiff, and in addition to these, the' defendant claims that the plaintiff was under an obligation to do the work by its own men. Apart from certain technical defenses, which were abandoned in this Court, the defenses relied on were, first, that in many instances in each city, the work was not done in a first-class and workmanlike manner; secondly, that in some instances the plaintiff did not personally select the locations; thirdly, that in-many cases the locations selected were poor and the wall display was poor and the showing not satisfactory; send-fourthly, that the painting was done in each city, not by the plaintiff’s own men, but by local men employed by the plaintiff.

This was admitted by the plaintiff, and the reason that local men were .engaged to do the work was, as stated by Carl May, that he was able to secure better locations by making arrangements with local men, because they were able to'give a better distribution for locations than he would be able to secure. On other questions of fact there was decided conflict in the testimony. That of the plaintiff tending to show that the work was done as required by the. contract; that of the defendant that in many instances the locations were poor, the workmanship inferior and the showing unsatisfactory. It is needless to discuss this conflict in the evidence, as all the material questions of fact were submitted to the jury under the instructions of the Court.

It is important, however, in this connection to state that testimony was offered on behalf of the plaintiff to the effect that the defendant was informed prior to the beginning of the work of painting that local advertisers had been engaged to do the work, why this arrangement with local men had been made, and that that arrangement had been approved and assented to and acquiesced in by the defendant. The defendant never attempted to rescind the contract, but permitted the work to proceed ²⁸¹ until all the work sued for in this case had been done-. It then expresed its willingness, after having inspected the work, “to pay for the signs that have been approved as good and fair, and in its letter of September 3, 1912, to the plaintiff a number of signs are designated as good or fair. During the course of the trial, seven exceptions were reserved by the defendant — one to the action of the Court in excluding a juror from the panel before he had been sworn: five to rulings on evidence, and one to the ruling on prayers submitted at the conclusion of the whole case.

The defendant contends that the Court committed reversible error in refusing its first and fourth prayers. The first prayer was treated as a demurrer to the evidence, and asked that the jury be instructed to find their verdict for the defendant. Conceding that it could so be treated in the form in which it was drawn, which, however, we do not decide, we are of opinion that it was properly refused. The defendant invokes in support of this prayer the doctrine announced and applied in B. & O. R. R. Co. v. Brydon, 65 Md. 198 , and Eastern Advertising Co. v. McGaw, 89 Md. 72 .

In the first of these cases it was held that in a contract where the quality and acceptability of the coal were left to the approval of a third party, there could be no recovery, unless acceptance by such third party be shown, or unless it be shown that the coal delivered was rejected by him in bad faith or fraudulently. This rule has been frequently applied by this Court. In the second case, it was shown that the appellant, without the consent of the appellee, had sold its business of street car advertisement to another company, but the appellee refused to assent to the assignment of the contract to the purchaser. It was contended that upon the authority of these cases there could be no recovery; first, because the work was not satisfactory to the defendant; and secondly, because the work of painting the signs on the walls of houses had been done by local advertisers in the various cities, without the defendant’s knowledge or consent. ²⁸² It is sufficient to say in reply to these contentions, first, that the defendant did approve a great many of the signs and expressed its willingness to pay for them; and, secondly, that there is evidence that it consented that the painting of the signs should be done by local advertisers.

In view of this evidence the Court was right in not withdrawing the case from the jury. It is the function of the jury to pass on the weight and credibility of the testimony, and it is the duty of-the Court to state the law applicable to it. “If the plaintiff completed the work according to the terms of the agreement, it was entitled to recover the contract price. If, however, it was done imperfectly, or in any manner variant from the stipulations of the contract, and was accepted by the defendant, the plaintiff was entitled to recover what it was reasonably worth. There can be no question on this point since the decision of this Court in Watchman v. Crook, 5 G. & J. 239 .

We take the principle to be, that a person entering into a contract, has a right to insist on the performance of it in all particulars, according to its meaning and spirit; but that if he chooses to waive any of the terms introduced for his own benefit, he has the power to> do so. If he contracts for an article of a particular quality or style of workmanship, and he elects to accept in lieu of it one of another kind, he discharges the other party from the obligation of furnishing an article which complies with the specifications of the contract, and he becomes bound by a new implied contract to pay for the article, which he has accepted, what it is reasonably worth. And so where there is a contract for work of a particular description, and he accepts work of another kind. But he is not obliged to accept anything else in place of that which he has contracted for; and if he does not waive his right, the other party to the contract cannot recover against him without performing all the stipulations on his part.

The question then in the present case, supposing that the work has not been done according to the contract, is whether the defendant has accepted it. The law on the subject of accept ²⁸³ ing work done on the land or property of another, has sometimes been declared with great severity against parties doing such work in a manner not conformable to the contracts which they have