Glassman Construction Co. v. Baltimore Brick Co.

Childs, J., by special assignment, delivered the opinion of the Court. In this summary judgment action, the matter of double payment contends with that of windfall. Our task has been rendered somewhat less arduous through stipulation. The appellants, respectively, were the general contractor (Glassman) and Home Indemnity Co. (Home) as surety for the construction of air apartment project known as Plaza Towers East.

Both executed a bond conditioned upon the payment of all claims for labor and materials used in connection with the project. Glassman subcontracted the masonry work to Consolidated Masony and Fireproofing, Inc. (Consolidated) which purchased its materials from the plaintiff-appellee Baltimore Brick Company (Baltimore). Commencing on February 3rd and continuing through July of 1964 Baltimore supplied materials to Consolidated for Plaza Towers in amounts corresponding to the following monthly values: February $ 3,544.23 March . 6,647.84 April .., 6,590.40 May ... 5,661.31 June ... 4,693.75 July .... 670.53 $27,808.06 In payment under the masonry subcontract Glassman issued its checks made payable jointly to Consolidated and Baltimore on the indicated dates, and Baltimore duly credited Consolidated for the following payments: March 6, 1964 ............... $ 3,600.00 April 28, 1964 ................ 4,500.00 May 8, 1964 ................. 8,649.47 June 8, 1964 ................ 5,572.61 July 22, 1964 ................ 1,000.00 $23,322.08 ⁴⁸⁰ Each of the checks bore the following notation: “Note: Two Endorsements Required The Undersigned Endorser (s) in Consideration of the Issuance of this Check, do hereby Waive and Release to the Extent of the Full Face Value Hereof any Right any of them may have to Claim a Mechanic’s or Materialmen’s Lien or to Assert any Claim Under any Bond Given by the Payer Hereof as Principal, for any Work Done for or Materials Furnished to the Payer Hereof or any other Payee or Payees Named Herein on or About the Construction, Repair or Improvement of the Job Designated on the Reverse Side Hereof.” The first check which Glassman issued, and the only one of its checks involved in this controversy, was endorsed by Baltimore and delivered to Consolidated. It was stipulated by the parties (a) that this check was in payment for bricks delivered, and (b) that at the time of endorsement of this check by Baltimore and delivery thereof to Consolidated, Baltimore accepted in lieu thereof Consolidated’s check in like amount which was deposited in plaintiff’s account on March 10, 1964, and was dishonored for insufficient funds when presented for payment.

Subsequently, Consolidated furnished to Baltimore yet another of its checks in like amount in lieu of the dishonored check. This second check was certified. (Italics by the Court.) Consolidated subsequently defaulted in the performance of its subcontract, and Glassman was required to complete the work at a higher cost to it than the unexpended balance of the subcontract price. When Baltimore failed to receive the remainder of its material charges, on September 28, 1964 it made demand of Glassman and Home.

Payment was refused, whereupon Baltimore and Plaza’s owner brought suit on the bond in the Circuit Court for Prince George’s County joining Consolidated, Glassman and Home. The case was submitted under summary judgment proceedings on a stipulation of material facts, the pertinent parts of which were recited above. Judge Parker, after hearing arguments and receiving briefs found in favor of Baltimore on all