Fisher v. Vandevanter

Urner, J., delivered the opinion of the court. The record in this case is large, but the questions to be decided are few and simple. The suit is for the -breach by the appellants of a contract for the construction by the appellee, as sub-contractor, of about three miles of concrete road in Baltimore County, which the appellants had contracted to build for the -State Hoads Commission. It was provided by the sub-contract that the crushed stone, sand, and cement, required for the road, should be furnished by the appellants at stated prices, and delivered by them at the site of the work.

The quantities of stone and sand thus furnished were to be ascertained from the estimate of the engineer of the State Hoads Commission as to the dimensions of the concrete incorporated in the roadway. Work under the subcontract was begun early in August, 1916, and was suspended on the eighth of the following December on account of weather conditions. At that time, about two and a quarter miles of the road had been constructed. It was stipulated both in the appellants’ contract with the State Hoads Commission, and in the sub-contract with the appellee, that the road should be completed on or before December 1, 1916, but the Commission appears to have waived that requirement.

As the concrete work could not be properly done during the winter months, the construction of the road was interrupted until the following spring. In the interval ²⁵¹ efforts were made by the appellee to induce the appellants to adjust certain losses which the former claimed to have suffered because of the alleged failure of the latter to malte deliveries of crushed stone in sufficient quantities and at suitable times and places, so that the work could bo regularly prosecuted. Because of tbe refusal of the appellants to recognize this claim, the appellee declined to proceed further with the performance of the sub-contract. The road was completed by the appellants in the- spring and summer of 1917.

In the pending suit the appellee seeks to recover damages for the losses alleged to have been incurred in the manner just indicated, and the appellants, in addition to their denial of that claim, plead the breach of the appeJlee’s contractual duty to finish the road, and they make a counter-claim for the amount of the cost of its completion in excess of the subcontract price. The appeal is from a judgment entered on the verdict of a jury in favor of the appellee for the sum of $2,500. The first question arises upon a demurrer to the declaration, which contained four counts. The demurrer was sustained as to the third and fourth counts, while as to the first and second it was overruled.

Objection is made to the first count because, in alleging the non-delivery of materials by the defendants at proper times for.the due performance- of the work, it proceeds upon the theory that it was- their duty under the sub-contract to furnish the materials “when required by the plaintiff,” which the-ory is- said by the defendants not to be supported by the agreement. This criticism appears to misconstrue the meaning of the allegation to which it is directed. The context of the declaration shows, that the allegation of a duty on the part of the defendants to deliver the materials when required by the plaintiff was simply intended as an averment that the defendants were obliged to furnish the materials at the time when they would be needed by the plaintiff, acting with reasonable diligence for the performance of the work within the stated period. This was the evident purpose of the contract. ²⁵² The second count charged a failure by the defendants to deliver the material for the road “at the site of the work,” as the sub-contract provided.

The claim under thisi count, as shown by the bill of particulars, is that crushed stone and sand were in some instances delivered at places unsuitable for their use, and that the plaintiff was thus subjected to loss and expense. It was the theory of the demurrer to' this count that, as the materials were admitted to have been placed somewhere along the road in process of construction, the re* quirement of delivery “at the site of the work” appeared by the plaintiff’s own averments to have been fulfilled. But we are unable to give such an effect to that provision. It was certainly not intended that the deliveries of materials could be made at places where they could not be conveniently used for the construction purposes for which they were designed.

The “site of the work” was not some point on the projected roadway remote from the scene of the subcontractor’s operations, but the place where the materials were needed for the work in the course of its normal progress. The ruling on the demurrer to the counts we have considered was proper. As elements of the damages alleged to have been sustained as a result of delay in the delivery of materials the plaintiff •claimed: $1,607.21 as “direct loss in overhead expenses and for labor,” $1,142.16 for1 “loss in efficiency of concrete gangs,” $923.40 for “loss in efficiency of gangs doing: grading, etc., work,” $387.00 for “cost reloading, hauling and storing cement,” $78.00 for “cost of rehandling material,” and $1,125.00 for “loss of plaintiff’s time from November 3. 1916, to March 21, 1917.” He also claimed $1,701.57 as profits he would have earned on the portion of the work completed by the defendants. Testimony as to all of these items was admitted subject to exception, but at the close of the trial, on motion of the defendants, all evidence was excluded which referred to the claims for impairment of labor efficiency, loss of plaintiff’s time, and loss of profits.

Instructions were also granted at the defendants^ request excluding those items from the consideration of the jury. The principal ex ²⁵³ ceptions requiring consideration are those relating' to* the competency and legal sufficiency of the evidence