Dick v. Biddle Bros.

Burke, J., delivered the opinion of the Court. The appellees brought suit against the appellants in the Circuit Court for Wicomico County, and recovered a judgment for the sum of three hundred and thirty-six dollars and fifty-six cents, from which this appeal was taken. The declaration contained the common counts, and three special counts. Two witnesses were produced on behalf of the plaintiff, b.ut no testimony was offered by the defendants.

During the course of the trial five exceptions were taken by the defend ³¹⁰ ants, four to the ruling of the Court on the admissibility of evidence, and one to the action of the Court upon the prayers submitted by the respective parties. The following Bill of Particulars was filed with the narr.\ BILL OF PARTICULARS. Salisbury, Md., May nth, 1905. Minnie Mills Dick and Frank M. Dick, Her Husband, ' To Biddle Brothers, Dr. May 3 — Oct. 7, 1904.

To Plumbing as per contract................................................ $554 00 “ Gas piping house as per contract....................................... 122 00 1 ‘ Radiator in bath room as per contract............................... 26 75 “ Extra for connecting rain spout to sewer. “ 15 ft. of 4 in. soil pipe............................................$ 3 60 2 ft. 4 in. bends......................................................• 60' “ 15 lbs. of lead........................................................ 1 05 “ 4 hours time plumber and helper, 75c....................... 3 00 8 25 May 18 — Oct. 7. To extra for gas piping tenant house To 22 ft. of Y in- black pipe, 8c....................................$ x 76 “ 32 ft. of yz in. black pipe, 7c................................... 2 24 “ 58 ft. of Yz in. black pipe, 6c.................................. 3 48 “ 12 lbs. fittings, 24c........................................... 2 88 “ 20 gas pipe hooks................................................. 40 “ 19 hours time plumber and helper, 75c..................... 14 25 25 01 Sept. 29 — Oct. 7. To extra for running gas pipe to tenant and to barn and fitting gas lights in barn. To 1 Y in. galv. running screws..................................$ 26 “ 6 lbs. of galv. gas fittings, 24c.................................. 1 44 “ 162 ft. of lin. black pipe, 10c................................... 16 20 “ 167 ft. of Y black pipe, 8c....................................... 13 36 > “ 7 ft. of J4 black pipe, 7c.......................................... 49 “ 25 ft. of Yi black pipe, 6c........................................ 1 5° 33 2 5 - $769 26 Carried over............................................................. $769 25 Sept. 29.

To one day plumber and helper....................$ 6 00 Sept. 29. “ 5 hours time plumber, 50c........................ 250 29. “ i day labor...............................;.......... 1 50 “ 30. “ 1 day plumber and helper.........1.............. 600 “ 30. “ i day plnmber.................................. 4 00 “ 30. “ 1 day labor............................................. 1 5° 21 5° Oct. 7. “ 12 hours time plumber and helper............$ 9 00 •“ 7. “9 hours time plumber, 50c........................ 4 50 ³¹¹ Sept. 30. “ Car fares from Salisbury to Hebron and return, 4 men, 40 cents.......................... 1 60 Oct. 7. “Car.fare from Salisbury to Hebron and return, 3 men. 40 cents.......................... 1 20 16 30 May 18 and 19. To water pipe to poultry yard. 88 ft. of X in- galv. iron pipe......................................$ 8 80 1 ^x^x}4 in. galv. tee................................................ 08 4 X in- galv. ells, .08................................................... 32 1 X in.xX in. galv. tee.............................................. 14 2 X in- galv. nipples................................................... 16 1 X in- stop and waste................................................ 80 1 X in- hose bibb....................................................... 85 14 hours time plumber and helper.............................. 10 50 2 days time labor........................................................ 3 00 24 65 May 17. For putting spigot on porch at tenant house. xo ft. X in- galv. pipe..................................................$ 80 i X in- galv. tee......................................................... 08 1 X in- “ ell......................................................... 06 ' x X in- hose bibb..................................................... 80 2 hours time plumber and helper.................................. 1 50 Oct. 8.

To one set gas pipe testing tools................................... 10 00 13 24 l»44 95 Oct. 4, 1904. On this date by Mrs. Dicks request, I made a trip to your place to repair leak in plumbing. On arriving there I found no leak. Some one I presume had upset some water on the bath room floor; this water followed piping down to ceiling.

This trip cost us, Horse hire................................................................$ 1 50 5 hpurs time, 50 ct..................................................... 2 50 $ 4 00 Oct. 6. On trip to your farm as per request of Mrs. Dick m interest of gas fixtures, Horse hire...............................................................$ 1 50 $ 1 50 185° 45 Credits. June 24th, 1904. By order given Dorman & Smyth......$150 00 June 30th, 1904.

By check from Mr. F. M. Dick.......... 400 00 550 00 Balance.................................................................... $300 45 The case was tried on the 24th of September, 1906, and it ³¹² appears that on the 22nd day of March, 1906,' the plaintiffs served upon the defendants’ attorneys a notice to produce at the trial of the case the proposal submitted by the plaintiffs, either directly or indirectly, to the defendants or either of them, of the work to be done by the plaintiffs for the. defendants, as set forth in the bill of particulars,-and particularly the typewritten proposal, estimate,- specification or specifications submitted by the plaintiffs to the defendants, or either of them directly .or indirectly, for the work mentioned in the first three items of the bill of particulars, and set forth in the narr. filed herein. The proposals or specifications called for were not produced in response to the notice. At the trial the Court permitted Arthur Biddle to testify: 1st. That he and Harry Biddle were partners, trading as Biddle Brothérs, and were engaged in the business of plumbing, and offered to show that Minnie Mills Dick, one of the defendants, sent for him and asked him to furnish an estimate of cost for doing certain plumbing work at her farm in Wicomico County, and that after calling on her he submitted a proposal to her for the work which she desired to have done.

The; -written proposal was produced and offered in evidence. It was addressed to Mrs. Dick, and showed an offer on the part of the plaintiff to do certain specified work at her residence. The plumbing work, the nature and character of which were specifically described in the proposal was to be completed for' six hundred and forty-six dollars; a radiator in the bath-room and the necessary work in connection therewith was to cost twenty-six dollars and seventy-five cents; a gas machine and a gas pipe house, with about fifty lights, was to cost one hundred and twenty-two dollars. The proposal provided for two bath rooms.

The witness testified that after Mrs. Dick had examined the proposal, she wanted one of the bath rooms left out, but no other changes were to be made; that he made out a new proposal, and took the same to Samuel S. Smyth for the purpose of having it sent to Mrs. Dick; that latter on the same day on which he had delivered the new.proposal to Smyth, the witnéss ³¹³ called Mrs. Dick over the phone, and testified that he recognized her voice; 'that he asked her if she had receiyed the new proposal, and. that she said she had received the five hundred and fifty-four,dollar proposal, and told him to go on with the work; that the new proposal was for the contract price o five hundred,and fifty-four dollars and that the .original proposal (which had been offered in evidence and which' witness stated had. been submitted to Mrs. Dick) was precisely the same as the new proposal which he said Mrs. Dick had.ac^ cepted over the phone, except the item of one bath room which had been eliminated, and which, had thereby reduced the original contract price from six hundred and forty-six dollars to five hundred and fifty-four dollars. The first specia count is based upon this contract. The defendants objected to this evidence, and their objection being overruled, they excepted, and this constituted their first bill of exceptions. 2nd. The witness then testified on cross-examination that he did not see the copy of the new proposal as made out and given to Smyth to be sent to Mrs. Dick either before or after it was sent to her; that Mrs. Dick said she had received the new proposal, and told him to go ahead with the work.

The defendants “moved the Court to rule and exclude ,from the jury the proposal as offered in evidence by the plaintiffs.” This motion the Court denied, and the defendants excepted and this constitutes the second bill of exceptions: • - ■ The first and second exceptions may be considered together, as they involve substantially the same question. The evidence tended to show that the witness had himself made out the. new proposal,' and