Fogelsanger v. Price

McWilliams, J., delivered the opinion of the Court. We shall be concerned here with a dispute between natural enemies, the yachtsman (Fogelsanger) and the yacht yard (Price). Fogelsanger’s discontent seems to have arisen out of a failure of communication in respect of Price’s ministrations to his elderly Chris Craft, “Dapper Don II.” The case came on for trial in the Circuit Court for Queen Anne’s County before Turner, J., sitting without a jury. Price prevailed and from the ensuing judgment against him ($4,220.58) Fogelsanger has appealed.

Price will continue to prevail. Fogelsanger engaged a slip in Price’s Piney Narrows Marina on Kent Island in July 1970. In September Price sent to his customers the annual reminder that cold weather was in the offing. He urged “winterizing”— waterfront synecdoche for securing heads, engines, heat exchangers and tanks against freezing.

Another service offered was removing storage batteries from the boats and maintaining them at full charge with trickle-chargers. Neither service was performed without express authorization from the owner. Having heard nothing from Fogelsanger, Price telephoned him late in November. According to Price, Fogelsanger directed him to “winterize” the boat and remove and store the (7) batteries.

Fogelsanger denies he gave any such instructions. A week or so after the winterizing and the removal of the batteries had been accomplished the daily check revealed Dapper Don II to be down by the bow. Inspection confirmed that she was making water. Fogelsanger was notified forthwith.

Price’s men pumped out the water, hauled her, recaulked the leaking seams and put her back in the slip. Fogelsanger was billed for the winterizing and battery service in the amount of $153.50 and shortly thereafter he received a bill for $77 for the pump ²⁸⁹ ing, hauling and recaulking. He admits authorizing some of the steps usually taken to prevent damage by freezing but he denies authorizing any work on the engines and he insists it would not have been rational for him to authorize the removal of the batteries because they powered the automatic bilge pumps. The damage occasioned by the water, which would have been pumped out if the batteries had not been removed, was estimated to be about $700.

His counterclaim for this amount was dismissed and