County Commissioners v. Bel Air Suburban Improvement Ass'n

Briscoe, J., delivered the opinion of the Court. The Bel Air Suburban Improvement Association, a body-corporate, brought suit against the County Commissioners of Harford County in the' Circuit Court for Harford County and recovered a judgment for $930.. From this judgment, the defendant has appealed. The plaintiff’s declaration contains a special count on a contract between the parties and also three of the common counts, in assumpsit.

The contract is set out in the first count of the amended declaration and appears from the record to be as follows: “Bel Air, Md., May 18, 1903. “The Bel Air Suburban Improvement Association. “Gentlemen: “If your association will build and complete or cause to be completed the sewer from Scotts X-Boads along Main street extended to the railroad cut and thence to the outlet of said sewer, and will cause to be settled the pending injunction proceedings of George M. Lyle ⁵⁵¹ and wife against the County Commissioners and others, the County Commissioners will turn over to you the sewer pipe on the ground along the line of said sewer, and will pay your association upon the completion of said sewer the sum of seven hundred and fifty dollars; provided, that non-residents of Bel Air shall always be entitled to the use of said sewer for drainage purposes at rates not exceeding those paid by citizens of Bel Air, and provided further that said sewer be so constructed as to take care of the surface water along the line of the same. “B. P. Hanway, Pres. “Joseph E. Spencer. “George Archer.” The declaration then avers that the sewer mentioned in the agreement was completed during the year 1014, in, accordance with the terms; of the agreement But the defendant has declined and refused to pay the plaintiff the sum, agreed upon, although a demand has been made therefor. The record contains four bills of exception reserved at the trial of the ease, three to the rulings of the Court below on evidence, and the fourth to the refusal of the Court to grant the defendant’s nine prayers. The various contentions which are raised by the exceptions to the rulings of the Court will be disposed of by us in the regular order in which they appear, to have been presented in the Court below and not as set out in the record. Therei was no error in the rulings, of the Court in the admission of the evidence set out in the first and second exceptions.

The deeds from Eichardson to Evans and from the latter to the appellee, and the mortgage from the appellee to the Jarrettsiville Building Association were relevant and admissible to aid, uphold and to enforce the contract, and to show a performance by the appellee of the contract io the extent that the Eichardson objection to the construction of the sewer had been removed, and that the money bad been provided for ⁵⁵² without liability resting upon the County Commissioners for the work under the contract. Fryer v. Patrick, 42 Md. 51 ; Stockham v. Stockham, 32 Md. 196 . The ruling in the fourth exception" was correct. The witness Somerville was asked by the counsel for the appellant upon examination in chief the following question: “In your judgment is that pipe there as constructed sufficient to drain the surface water of that road?” The Court sustained an objection to the question and properly refused to allow the witness to answer it.

Apart from other objections to this question the witness had not qualified as an expert and his opinion as to whether or not the work was done according” to the requirements of the contract was a question which the jury could decide upon the facts without the opinions of witnesses. Bat lo. Belt R. R. Co. v. Sattler, 100 Md. 306 ; Consolidated Gas Co. v. Smith, 109 Md. 198 ; Stumore v. Shaw, 68 Md. 11 ; B. & Y. Turnpike Road v. Leonhardt, 66 Md. 18 . This brings us to the exceptions relating to the rulings upon the defendant’s nine prayers.

The defendant’s first prayer asked the Court to instruct the jury that there was no evidence in the case legally sufficient to