Gaybis v. Palm

Delaplaine, J., delivered the opinion of the Court. Myer Gaybis, individually and doing business as Globe Construction Company, instituted this suit in the Circuit Court for Baltimore County to enforce a mechanic’s lien against real property owned by William J. Palm, Sr., and his wife in Pikesville. He claimed a balance of $1,205.87 due under a contract to build their house at Oak and Glenback Roads. On February 18, 1852, the Court dismissed the bill, allowed the Palms a set-oif of $1,685, and awarded a decree in favor of defendants against complainant for $479.63.

Complainant appealed from that decree. The record shows that the Palms on April 13, 1950, made an application to A. H. Carrigan & Company, realtors, to arrange for a contract with a builder for the construction of a house to be similar to the house at 515 Charles Street Avenue, near Towson, then occupied by Robert K. Musselman, a partner in the realty company, except that the house was not to have a basement. The cost was to be $14,950, the Palms to pay $5,000 in cash, and the balance to be procured by the company on a construction mortgage. Shortly after-wards the Palms decided that they wanted a basement, which would cost them $1,000 more.

Accordingly on May 16 they signed a contract by which appellant agreed to build the house for them for $15,950. The contract contained the following provision: “The General Conditions of the Contract, the Specifications and the Drawings, together with this Agreement, form the Contract, and they are as fully a part of the Contract ⁸¹ as if hereto attached or herein repeated. The following is an enumeration of the Specifications and Drawings: Drawings consisting of four (4) pages dated May, 1950. Specifications consisting of seven (7) pages.” Palm testified that he asked Musselman about the plans and specifications and was assured that “it was all right to sign the contract, because I was fully covered because my house would be built just like his, and I would have everything in that house that he had.” About two weeks later Musselman brought him a copy of the plans, and explained that he had submitted a copy of the specifications to the Moss-Rouse Company, a mortgage dealer in Baltimore, along with the application for the construction loan, and that he would make another copy for him.

About a week afterwards Mussel-man delivered a copy of the specifications. On June 27 the Palms, upon acquiring title to their building lot, paid $5,950 to the realty company as the first payment on the contract. At that time they expressed no objection to the plans and specifications, which they had received several weeks before. The fact that the plans and specifications were not exhibited at the time of the execution of the contract did not render them nugatory.

The Palms were given copies of them before any work was begun, and they gave their tacit approval of them. Where a contract by express terms makes plans and specifications a part of itself, they will control with the same force as though incorporated in the contract itself. Aetna Indemnity Co. v. Waters, 110 Md. 673 , 73 A. 712 . The specifications in this case prescribed that the contractor would do all necessary normal excavating and rough grading; that all excess dirt would be hauled away by the contractor; and that all necessary fill would be provided by the owner.

The specifications with which we are particularly concerned reads as follows: “If rocks, springs, wells, trees, or any unusual water conditions are encountered the owner will pay for same on ⁸² a time and materials basis over and above the contract price.” About July 1 appellant’s foreman, Gino Geminanni, while staking off the lot, took several test borings and found water about two and a half feet below the surface. About July 15 appellant’s workmen excavated with a bulldozer. Immediately there came a flow of water into the excavation. At times it was nearly one foot deep.

Palm said that appellant offered to refill the excavation and provide for a utility room in place of a cellar at no extra cost. However, the fact remains that Palm watched the men at work, and was fully aware that they were not refilling the excavation, admittedly preferred to have a cellar, and acquiesced in the completion of the house with the cellar. Geminanni. recommended that a sump pump be installed to drain the water into a ditch. After Geminanni left the job, Raymond Pursley took charge as appellant’s foreman.

Palm testified that Pursley assured him that he knew how to build a house and to get a dry cellar. Palm bought two loads of cinders and a pump and drain tile. Appellant’s workmen dumped the cinders and laid the tile, while an electrician employed by Palm installed the pump. It was found, however, that the pumping was not a complete remedy, because the flow of water continued.

In March, 1951, the appraiser for the Moss-Rouse Company, the agent for the mortgagee, inspected the property and found inadequate drainage for the foundation walls. On a visit to the property some time later, he found that the cellar was still wet, and for that reason his company declined to make further payment to appellant under the mortgage. Some months later Palm called another contractor, Linwood Greenwalt, to inspect the cellar. Greenwalt noticed that water was seeping through the walls and floor.

He testified that the joists were not filled with cement, and he undertook to make the cellar dry for $1,215. He cut through the cement floor, took out the drain tile, installed new tile, brought stone in and filled ⁸³ it around the tile, and after refilling with cement applied hot asphalt, and put two inches of waterproof cement over the entire floor and waterproof cement and two coats of waterproofing on the walls. The Maryland Mechanic’s Lien Law provides that every building erected and every building repaired, rebuilt or improved to the extent of one-fourth its value shall be subject to a lien for the payment of all debts contracted for