Denmead v. Coburn

Le Grand, C. J., delivered the opinion of this court. This is an action of indebitatus assumpsit, for work and ⁴³ labor, brought by the appellee against the appellant, to recover the sum of $963.71. The principal facts of the case may be thus stated: The appellant liad a mill race which flowed under Eager street, in the city of Baltimore, at the time when the city determined to fill up said street and extend it across Jones’ Falls. To enable it to do this effectively, it was necessary the mill race of the appellant should be arched over under the bed of the street, and accordingly the proper officer of the city entered into a contract with the appellee to build the arch for a specified price.

Subsequently an arrangement was entered into between the city commissioner and the Messrs. Deumeacl, by which the sum agreed to be paid to the appellee, for the building of the arch, should be allowed to the Messrs. Denmead, they agreeing to have an arch placed over the mill race of a superior character to the one contemplated in the original contract with the appellee, and to be liable for any additional sum which it might cost, it being, also, a part of the said agreement that the appellee should do the work. Because of this understanding with the city commissioner, the agreement of date 22nd November 1852, was entered into.

The evidence shows that whilst the arch was in the course of construction, a Mr. Crey, in fulfilment of a contract with the city, was engaged in filling up and extending Eager street to the margin of Jones’ Falls, and, of course, over the race of the appellant. Over this coutractor neither the appellant nor appellee bad any control, be being subject only to the city commissioner. Before the arch was completed that portion of it which was done gave way. This was owing, according to the opinion of different witnesses, to different causes; in the judgment of some of them, to the inferior character of the materials used and workmanship; in ibat of others, to the manner in which Crey, the contractor for filling up Eager street, caused the earth used for that purpose to be “dumped” down against the arch.

There was sufficient evidence to go to the jury to sustain either theory. After the arch had fallen, the appellee was notified that he bad not fulfilled his contract, and subsequently it was rebuilt ⁴⁴ by a Mr. Oliver, employed for that purpose by the Messrs. Denmead. In the rebuilding, according to the testimony of the builder, a small portion of the material which was in the former arch was used in the reconstruction.

The claim of the appellee is for the building of the arch, extra work, and materials. During the progress of the wqrk the appellee received on acqount, and in part payment, $15Q. On the evidence, the plaintiff offered three prayers, which were granted, and the defendant four, the first three of which were granted, and the fourth rejected. 'There is no special count in the declaration on the contract; if any recovery be had it must be, because the work under the contract was fully performed and accepted by the partips for whom it was done, or, that