Carroccio v. Thorpe

Prescott, J., delivered the opinion of the Court. Property owners, who had a summary judgment entered against them in favor of a contractor-builder, appeal. On or about April 3, 1958, the appellee, Bernard C. Thorpe, filed a law suit against the appellants, Mr. and Mrs. Carroccio, in which he asked the Circuit Court for Montgomery County to award him damages and monies due by virtue of a written contract for the construction of a dwellinghouse, entered into by and between the parties on the 3rd day of January, 1957. Filed with the declaration were a motion for summary judgment, the construction contract, and an affidavit in support of the motion.

The appellants filed a plea, and thereafter counsel for the parties agreed upon a written stipulation whereby Ed ⁴¹ ward W. Nylen would be appointed as a special auditor to state an account in the cause, and the plaintiff’s motion for summary judgment was, at that time, withdrawn. The stipulation set forth certain terms and conditions which were to be irrevocable and provided that either party aggrieved by the account to be filed by the special auditor would be limited to a remedy of excepting to the account within ten (10) days following the receipt of a copy of said account. Pursuant to this stipulation the court passed an order on August 28, 1958, appointing Nylen as a special auditor to state an account according to the terms and conditions agreed upon in the stipulation. The special auditor met with counsel for both the appellants and the appellee on several occasions and discussed all of the items of construction and items claimed as credit by both parties, item by item, and in some detail.

He viewed the premises on two occasions and on the second occasion, was accompanied by the parties to the suit and their respective counsel. After many meetings of counsel and the parties with the auditor, the appellee claimed that a complete settlement and agreement was reached as to all items in controversy except five. The appellee further claims that the parties, in the presence of the special auditor, agreed as to whether each item should be allowed or disallowed or set forth in the account at all and the amounts to be credited to each item. Five items, according to the appellee, could not be agreed upon as to amount and were left to the auditor to determine.

The appellee claims the amounts were adjusted according to arguments advanced by counsel for both parties and many items were split, traded, deleted and added in the spirit of compromise and in an effort to reach a settlement. Thereafter, the auditor prepared and filed an account in which he set forth all the items which he thought had been agreed upon and the amounts agreed to and showed the total due the appellee by virtue of the settlement. He also made a determination as to the five items on which no agreement could be reached by the parties. The appellants filed some forty detailed exceptions to the report of the special auditor, and, in the exceptions, it was alleged that the appellants “were advised that said report was a tentative report”; that the auditor had “failed to consider ⁴² certain evidence submitted relating to the items excepted” to; and that they were not advised that the report had been filed as a “final” one.

The appellees filed another motion for a summary judgment based again upon the ground that there was no genuine dispute as to