Dowling v. Bruffey

Singley, J., delivered the opinion of the Court. . There came a time in October of 1967 when Joseph A. Dowling and Sandra L. Dowling (the Dowlings) entered into a contract with Robert C. Bruffey, under the terms of which Bruffey was to build a house for $25,594.00 on certain lots which the Dowlings owned in Prince George’s County. The house was finished by June of 1968, at which time the Dowlings had paid Bruffey all but about $5,000.00 of the basic contract price without taking into account charges for extra work and credits for work and materials not to be performed or provided. According to Bruffey, the Dowlings had been sent statements on 10 June and again on 29 October 1968 which included among “extras” $2,080.00 for additional excavation and footings.

Mr. Dowling denied receiving the June statement, but did make payments in June and October of 1968 totalling $4,720.00 as well as payments in April and May of 1969 approximating $1,000.00, leaving an unpaid balance of $1,968.48. When the Dowlings refused to make this final payment, Bruffey brought suit and the Dowlings counterclaimed for certain uncompleted work. From a judgment for $1,653.23 in Bruffey’s favor the Dowlings have appealed. While the facts of this case are diametrically opposed to those in Evergreen Amusement Corp. v. Milstead, 206 Md. 610 , 112 A. 2d 901 (1955), we propose to affirm the judgment entered below, because we regard the rule of Evergreen as controlling here.

In Evergreen, the contractor, Milstead, entered into a written contract to supply the necessary materials and perform the work necessary to clear the site on which an outdoor theatre was to be located and to “grade the site as indicated on the plans” for a fixed price. The contract contained the further proviso, “At this contract price, no additional fill material will be substituted for unsuitable ⁷⁹ material found on the site.” Judge (later Chief Judge) Hammond, writing for the Court, summarized the facts: “The trial court found that both sides assumed when they contracted and the work began, that the site could be graded merely by moving the earth from certain parts of it to other parts, and that no additional dirt from the outside would be needed to reach the desired grade. Preliminary engineering studies on both sides, such as they were, relied on a contour map showing the topography of the ground, based on a survey made by a man who did not testify. Doubt was cast on the accuracy of the map by an engineer, who explained that the piles of debris, stumps and tree trunks on the property when the map presumably was prepared, would have made it difficult accurately to prepare it.

The court found that the only accurate method would have been to make a complete cross-section of the property at reasonable intervals. It found the calculations of both sides to have been in error, as the fact that after some eight thousand cubic yards of dirt were hauled in the grading was still not finished as desired, bears persuasive witness. Indeed, the parties agreed that the north side of the site should be left slightly below the planned grade so that additional dirt would not have to be brought in. In any event, it was soon discovered that the cuts and fills would not balance and that a large amount of borrow would be required.

At a meeting of the parties, it was agreed that such fill dirt as was needed to bring the site up to grade would be brought in, except at the north side, and that the appellee would be paid for this borrowed dirt at sixty-eight cents a yard. This agreement is denied by the appellant but the trial court found as a fact that it was made.” 206 Md. at 614-615 . ⁸⁰ The factual problem in the case before us is the other side of the coin. The significant provision in the contract which the Dowlings entered into with Bruffey is found in the specifications: “Excavation: bearing soil, type— undisturbed earth.” Dowling had permitted the lots to be filled when an adjacent road was built, and told Bruffey this. From an examination of the topography— no test borings were made — both the owners and the contractor assumed that about eight feet of fill dirt had been placed on the site, which would be removed when the cellar excavation was made.

The conditions which were encountered were vastly different. When Bruffey completed what he thought would be the necessary excavation, further work was stopped by a Prince George’s County