Catalano v. Bopst

Offutt, J., delivered the opinion of the Court. This is an appeal from a judgment of the Superior Court of Baltimore City in favor of the- ap-pellee- (plaintiff below) against the appellants (defendants below) in an action of assumpsit brought to recover the balance due under an alleged contract of employment- between the- parties. The appellee’s claim was that appellants had employed and agreed to pay him $1,500 to “check all materials and supervise the construction of the- steam distribution of the Capitol Power Plant, Washington, D. 0.,” which they had contracted to construct, and to- pay him in addition thereto one-half of any savings in the purchase- of materials resulting from changes originated by him in the design or methods of con ⁹³ struction specified by the federal officials in charge of the work as a basis for bids; that he had partially performed his contract and was willing, able, and ready to complete it, but was without any just cause or reason prevented from doing so by the appellants; that they had paid him $500 on account of the $7,500 due him for checking and supervision on account of such employment, but had failed and refused to pay him the balance thereof, and had paid him nothing at all for savings which had resulted from the purchase of material as the result of changes originated by him. Appellants’ defense was that (1) they never made the contract alleged by the appellee, and (2) that even it they had made the contract, appellee himself abandoned it and without legal justification failed and refused to perform the work wdiich under it he had agreed to do-.

The case was tried upon those issues before the court and a jury, which returned a verdict for the plaintiff, upon which the judgment from which this appeal was taken was entered. There was, in the case, evidence tending to prove facts which may be stated in direct narrative form as follows: John II. Bopst is a mechanical engineer who is also engaged in the contracting business, trading under the name of the Industrial Piping & Engineering Company, in the cities of Baltimore and Washington and adjacent territory. Dominick Catalano and Frank Pécora are copartners trading as the Catalano & Pécora Construction Company, herein called the construction company, are in the general contracting business, and have an office in Baltimore.

In March, 1931, Edward A. Myerberg, who knew both Bopst and Catalano-, was in Catalano’s office, and while there Catalano showed him the “plans of the Capitol Power plant” and told him that he (Catalano) was “going to* figure the job.” Myerberg suggested that Catalano get some one who understood the “mechanical equipment end of the work, and Catalano- then asked him if he knew such a person. Myerberg then went to Bopst’s office and asked if he would be interested “in figuring the job.” Bopst replied that he ■would, and several days later Myerberg took Catalano into ⁹⁴ Bopst’s office and introduced them to each, other. Bopst later met Pécora, and on May 9th, 1931, the three signed the following paper: “Preliminary Agreement. We agree to pay John H. Bopst for supervision, cheeking all material in connection with installing piping and insulation for the Capitol Power Plant, Steam Distribution Lines, the sum of Seventy-five Hundred Dollars ($7500.00).

Dominick Catalano, Frank Pécora, John H. Bopst.” After it was signed, the parties realized that it failed to- cover such details as that Bopst was to furnish tools for the job, and one of his foremen who was to be paid by the construction company, and as to the time of payment, and Bopst wanted it to refer to a discussion he had had with Catalano “pertaining to any savings” he could effect by substituting expansion joints different from those specified in the construction details. Bopst therefore wrote to' the construction company the following letter, which he personally delivered to Catalano: “Catalano and Pécora Construction Company, “Eldorado Apartments, “Baltimore, Maryland. “Gentlemen: “Confirming our understanding, I agree to supervise and act as your adviser in the purchase and installation of the piping and insulation for the Capitol Power Plant Steam Distribution Lines as shown on the plans and specification prepared by Mr. David Lynn, architect, for which service you agree to pay me the sum of $7,500.00, as follows: $2,500.00 upon the delivery of the first materials on the job. At least 1,000.00 each month thereafter until the whole of the $7,500.00 is paid. It is understood that I am to supply the necessary steamfitters’ tools on the job for the laying of the piping.

If, however, any of these tools are lost, destroyed or damaged, you will pay me for such loss and damage, or replace same. If any money is saved you by substituting (with the permission of the proper authorities), expansion bends in place of the Badger expansion joints now specified, or any other materials, you agree to give me, in addition to the ⁹⁵ above sum, one-half of any saving effected thereby. Such saving shall be computed on the basis of the difference between the quoted price as already given you on the now specified materials, and the actual price paid by you for the substituted materials. By supervising is meant the normal supervision of jobs of this character, and will not require me to give my full time to the work. “Yours very truly, “Industrial Piping & Engineering Co. “Accepted a a ??

Bopst testified that when he delivered it, “Mr. Catalano, after reading it over, objected rather strenuously to the way I had written the terms of payment, and after quite a discussion it was mutually agreed, and from my suggestion, that as the Catalano and Pecora Construction Company obtained a monthly payment on the contract, I was to be paid proportionately my agreement of $7,500 for supervision with them, in other words, if they received ten per cent, of their lump sum contract of $317,000, then I would receive from them a check for $750, and we agreed on that.” He further testified that Catalano said nothing about how Bopst was to be paid for any savings he might effect. Prior to signing the preliminary contract, Bopst had spent about two weeks in checking the plans and specifications to prepare a list of materials upon which the construction company might get quotations in preparation for its bid. After the construction contract had been awarded to the construction company, he had conferences at the office of Catalano and Pecora, met representatives of manufacturers to consider the prices and character of material to be furnished, in connection with the work went to Wheeling and Pittsburgh, and as a result of negotiations with manufacturers and changes in certain expansion joints had the bid on such material reduced from $80,000 to $65,000, which was later reduced to $52,500. He formulated plans for the alignment of pipes or mains as. a substi ⁹⁶ tute for the use of certain “dummy fittings”, which were accepted as satisfactory by the engineer of the federal government in charge of the work, which change effected a material saving to the contractor.

Bfe was “on the job” every week, two or three times a week, checking up v?ith the construction company’s engineer on construction details; he furnished the steam fitters’ tools as required by the contract; he furnished Lutz, a foreman, and “obtained a set of men, in Washington, all Union men”; Lutz and his assistant went to Washington and “obtained another set, steamfitter, a pipe fitter and his helper from the Washington Local, and he supervised the job.” The first pipe was laid September 5th, 1931, and Lutz worked from September 5th to September 12th, when he was discharged. On September 11th Catalano and Pécora told Bopst to discharge the men; that they would not pay the steam fitter $1.50 an hour and his helper $.82 an hour; that they could get men who were trying to qualify themselves as pipe fitters at $.75 an hour. Pécora discharged Lutz and paid off his two Washington assistants, but did not pay Lutz or his Baltimore helper, but told them to go to Bopst. They went to' Bopst and he paid them.

Bopst visited the “site of the project” on the following Monday, talked to Boy C. Poore, who had been employed to take Lutz’s place, and stayed there “practically all day,” and visited it “off and on” until September 22nd. On September 15th or 16th, while he and Pécora were both “on the job,” the following interview occurred: “Mr. Pécora came to me, we were both on the job, and he said: ‘Mr. Bopst, I want you to be on this job at 7.30 every morning and stay here until these pipe fitters quit,’ and I said: ‘Mr. Pécora, will you repeat that statement you just made ?’ and he did, and I said in very emphatic language that he was entirely mistaken, that my contract did not call for me to be a foreman, a gang leader for the pipe fitters, that it called for supervision, and that any construction detail that might come up I was ready and willing to answer to the best of my ability in detail, or anything pertaining to supervision, but he clearly understood before that agreement was signed that ⁹⁷ I was legitimately in business for myself, and they could not possibly misconstrue supervision as meaning to be on the job at all hours of the progress of the job while the work was going on.” On September lAth he received the following letter from the construction company: “As the mechanical work on this project is not progressing as precisely and in as organized a manner as it should, we therefore recommend that you employ a capable engineer at your expense, to be your representative on the job at all times and who shall meet with our satisfaction as well as that of the Architect of the Capitol. “We feel that your business demands so much of your time that the above recommendation will meet with your approval. “Trusting that you will give this matter your immediate consideration and advise us accordingly.” Par from “approving” the suggestion that he employ and pay an engineer, Bopst on September 21st wrote the construction company disclaiming responsibility for the employment of men it had “on the job” as steam fitters and helpers, because from what Pécora and Catalano had told him, they were not paid in accordance with the prevailing wage scale, which was in violation of an act of congress, and in the course of the letter he said: “The signed contract between your firm and the writer calls for me to furnish supervision and checking all materials in connection with installing the piping and insulation. Supervision is not to be misinterpreted by you as superintendence. The writer has visited the job every day since the installation of the piping job started, on September 8th, 1931, with the exception of one day, September 14th, and did not visit the job this particular day, because he was told by you that there would be no steam fitters on the job that day.” On September 29th he again wrote it, saying: “As requested to the writer by Hr.

Pécora, arrangements will be made to have an engineer on your job Monday, October the 5th, 1931, at your expense.” To that ⁹⁸ letter on October 1st the company replied: “With reference to your letter of September 29th, 1931, please be advised that the services of engineer referred to in your letter will not be required for we have already made necessary employment to progress our project.” And on October 10th they wrote him: “In reference to agreement you made with us on May 9th, 1931, we want to inform you that you have broken this agreement. .As you have not been on the above project since we started laying pipe, which was September 12th, 1931, we have been forced to employ a mechanical engineer in your place.” Prior to that Bopst had consulted counsel, and on October 8th, Philip B. Perlman, Esq., a member of the bar, had written the construction company in reference to Bopst’s claim, and that letter had been referred by it to its counsel, Messrs. Harley, ^Wheltle & Webster, who acknowledged it in a letter of October 12th. Bopst continued to do work under his contract with the construction company until the first week in October, when “practically all of the materials had been checked off of the drawings that was absolutely necessary in order to place orders with the fabricating people, The Mid-West Piping & Supply Company, with the fitting people, the Stockham Fittings Company, and other incidental items on the job, the Badger Expansion Joint Company. The supervision had led up to the point of showing the method of procedure in consummating the contract.” On November 14th, 1931, Bopst addressed a recriminatory letter to the construction company which did anything but pour oil on the troubled waters, but in which nevertheless he tendered himself as ready, able, and willing to complete his contract.

Counsel for the construction company answered that letter by one addressed to Mr. Duvall, then counsel for Bopst, which, while not in terms a direct traverse of Bopst’s statements, was nevertheless a sufficient denial of any merit in his claim. During the cross-examination of Bopst he was shown what purported to be a letter dated May 25th, 1931, addressed to the Industrial Piping & Engineering Company, his trade- ⁹⁹ name, which Catalano later testified had been presented to Bopst at a conference at which Catalano-, Pécora and Elingenberg were also present, and asked' if he had ever seen it. Bopst flatly denied ever having seen the letter; but he was contradicted by Pécora and Elingenberg, who in connection with it later gave this testimony: “Q. When this letter was presented to Mr. Bopst, what objection did he make to- the terms contained in the letter ? A. As to the ten per cent, retained percentage, as he had underscored there, and this has been made up proportional to- the total amount of the contract.

That included the civil engineering work as well as the mechanical part of it. Q. What do- you mean by the civil engineering work? A. The concrete reinforcement and excavation, and he wanted to make it out proportional to- the mechanical part of the- work. Q. Is that the only objection he made to the letter?

A. Yes- Q. Is any part of that letter underscored in leadpencil ? A. Yes, ‘Being less