Gill v. Vogler

Robinson, J., delivered the opinion of the Court. The undisputed facts of this case are simply these: In January, 1875, the appellants made a contract with the authorities of Baltimore City for the improvement of Jones’ Falls, the work to be done to the satisfaction of the City Commissioner, in strict accordance with the plans and specifications on file in his office, and to be completed by the first day of July following. In March of the same year, the appellee contracted in writing with the appellants to do a certain portion of the work for five thousand dollars, the whole work to be done in accordance with the plans and specifications adopted by tbe authorities of Baltimore City, and to the satisfaction of the City Commissioner. It was further agreed between the parties, that the City Commissioner should make monthly estimates during the progress of the work; and upon the estimates thus made, the appellants were to pay Yogler eighty per cent., the remaining twenty per cent, to be paid on the completion of the whole work.

Under this contract Yogler began the work, and prosecuted it from time to time until the 30th of June, when he notified the appellants in writing, that unless payment, was made by the 2nd of July for the work already done, he would abandon the work. Eb monthly estimates were made by the City Commissioner, during the progress of the work, because in his judgment, the work had not been performed in accordance with the plans and specifications, and the appellants therefore refused to make any payments. Thereupon the appellee, Yogler, removed the machinery used by him in prosecuting the work, and sought employment with other persons. Afterwards, namely on the 9th of July, the appellants made a contract with Flaherty & Welsh for the completion of the work thus begun by the appellee; and upon being notified of this contract, the latter offered to resume the work, but this offer was refused by the appellants. ⁶⁶⁶ The evidence further shows that the appellants during the progress of the work, urged the appellee from time to time to put it in such a shape as would justify the City Oommissioner in making the monthly estimates, according to the terms of the contract, hut this he failed to do.

The appellee now seeks to recover under a quantum ■meruit for the work done hy him. Whatever difficulty there may he in reconciling the many decisions in regard to the right, of action hy one under a special contract, part of which remains unperformed, they all agree in holding, that where there is an executory contract, and the plaintiff has performed part