Eastern Heavy Constructors, Inc. v. Fox

Marbury, J., delivered the opinion of the Court. This appeal is brought from a judgment in favor of the appellee, defendant below, rendered in the Circuit Court for Prince George’s County, sitting without a jury, in the amount of $6,424.65, plus interest and costs. Eastern Heavy Constructors, Inc., appellant (hereafter referred to as the contractor), and William W. Fox, t/a Associated Electrical Company, appellee (hereafter referred to as the sub-contractor), entered into a written contract on April 25, 1961, providing that the sub-contractor would, under the supervision of the contractor, provide the electrical work and materials for the Oxon Hill fire station (hereafter referred to as the owner), such work to be in strict accordance with the plans and specifications. The contract provided that the subcontractor would receive the sum of $11,200 for the work and materials.

The method of payment basically was to be on a monthly basis, upon application of the sub-contractor containing the values of the materials and work performed during that monthly period. Upon approval of the contractor and the owner’s representative, the contractor was to pay the sub-contractor ninety per cent of the amount specified within five days ¹⁷ after the contractor received payment from the owner that month, the remaining ten per cent to be paid within ten days after the final payment by the owner to the contractor under the principal contract. The contract also provided that no extra work or changes would be recognized or paid for unless agreed to in writing before the changes were made, and such writing should specify the extra work or changes desired, the price to be paid or the amount to be deducted from the contract price because of the revision. Fox began work under the contract, and in the months of August, September, and October, made application to the contractor for partial payments, which were made in the total amount of $4,000.

Some disagreements arose between the two parties and when the contractor failed to pay a $4,000 requisition filed by the sub-contractor on November 24, 1961, the subcontractor, on February 2, 1962, filed a mechanic’s lien claim against the contractor and the owner and the contractor appeared. On February 14, 1962, the contractor filed its petition for release of lien. On March 5, 1962, an order of court was obtained providing for release of the lien and for the sub-contractor to prove the validity of his lien or have the same declared void. Then, on March 27, 1962, the sub-contractor filed what is called, a cross-bill of complaint to enforce the lien, alleging that he had performed all that was required of him under the contract and that there was due and owing him $7,200.

The contractor filed a subsequent answer denying that the work was completed, and certain other defenses not material to this appeal. A subsequent motion by the contractor for leave to file a counter-claim on another contract being denied, on May 22, 1961, at a hearing before Judge Gray, judgment was entered against the contractor for $6,424.65, with interest and costs. From this judgment the contractor appeals. At the trial, there was a sharp conflict in the testimony as to whether appellee had left work undone or improperly performed.

Judge Gray believed the version given by Fox that the work not completed was of a minor nature, somewhere in the money value of $46. There was testimony by appellant’s president to the effect that appellee did not have a sufficient ¹⁸ number of men on the job when they were needed, which resulted in delays in the work of the masons and carpenters also working on the project. This testimony was disputed by appellee in his own testimony and by that of appellant’s superintendent. Appellant claimed that appellee did not perform the work as specified, but substituted certain light fixtures for those which were specified, resulting in lower costs than those originally planned.

The testimony indicated, however, that appellee substituted these more inexpensive fixtures with the approval of the building committee of the owner. Appellant also claimed that one supplier of the appellee notified it that appellee was in default in payment of a bill, and appellant paid this supplier directly. Appellee disputed this, and claimed that appellant made the first contact with the supplier at a time when appellee was not in default in order to widen the dispute between the parties. Appellant makes three contentions which will be dealt with separately.

I The first contention is that the chancellor committed reversible error in refusing to receive the evidence of a substantial reduction in cost to appellee due to his substitution of cheaper fixtures than the contract