Davey Tree Expert Co. v. Dennis

Urner, J., delivered the opinion of the Court. The Davey Tree Expert Company, having obtained a, judgment for $4-33.56 on its claim of $601.13 against the appellee, Mr. John M. Dennis, for services rendered and materials furnished in the treatment of several trees on his ⁸⁸ premises in Baltimore County, has taken this appeal because of certain rulings which are said to have improperly limited the amount of the recovery. The contract for the work is embodied in a written order signed by Mr. Dennis, addressed to and accepted by the plaintiff corporation, as follows: “Will you kindly send your expert to treat my trees ? I understand that your charges are one dollar and eighty cents per hour for each man furnished (working time only), plus the cost of material and cartage.

I understand that payment is to be made direct to your main office within ten days after receipt of invoice. I reserve the right to stop the work at my discretion.” This was followed on the order form by the statement: “No straight contracts are permitted under any circumstances and no estimates which may be given by any representative of the Davey Tree Expert Company may be considered more than the personal opinion of the representative and are never binding upon the company.” The order was solicited by the company, and was given by Mr. Dennis with special reference to the preservation of a large ash tree standing beside the driveway to his residence. Two other trees were also treated, but the work upon them occupied only a short time. On the ash tree there were two “split crotches” where conditions had developed because of which considerable excavating, cementing and bracing work was required.

The service under the agreement began on May 30th and ended on June 19th, 1920. It was performed by one of the company’s foremen and another of its employees. The foreman’s weekly reports showed periods of work by himself and his assistant, respectively, which aggregated two hundred and ninety hours. At the contract rate of $1.80 per hour, the charge for their service was $522.

There were also charges amounting to $79.13 for materials. At the end of each of the three’ weeks during which the work continued, the foreman submitted to Mr. Dennis a report ⁸⁹ of the time spent on the work in the course of the week. There was a form of approval on the reports which Mr. Dennis signed as they were presented. When the first one was submitted for his approval he realized, as he admits, that the cost of the service -would exceed the estimate of $150 which, as he testifies, was given by the company’s representative when the order was solicited, but as the large ash tree had been excavated to such an extent that the work on it could not be safely left unfinished, and as he relied upon the good faith of the foreman and the assurance of fair treatment given by the company in its letter acknowledging the order, he signed the approval form on the weekly reports and allowed the work to proceed.

The claim in part is disputed on the ground that much more time was consumed in the work than it reasonably required, and that the charges for material are excessive. This defense is supported by testimony in the record. Competent witnesses for the defendant testified, after having examined the completed "work, that it could have been done properly within a period which, according to the maximum of their estimates, would not have been more than one-third of the time mentioned in the plaintiff’s claim. Erom testimony as to the value of the materials used, it could be reasonably inferred that the scale of charges for such items was higher than the agreement permitted.

By the plaintiff’s first prayer, which was granted, a verdict in its favor was directed if the jury found that the order mentioned in the evidence was given and accepted, and that the plaintiff “did certain work” in