Globe Home Improvement Co. v. Hood

Marbury, J., delivered the opinion of the Court. Globe Home Improvement Company, Inc., appellant-plaintiff, brought suit in the Circuit Court for Anne Arundel County to recover $2590 allegedly due it for goods and services that it had rendered to Dorice Hood and Norma Hood, his wife, appellees-defendants, pursuant to a written contract between the parties entered into on or about July 24, 1965. The appellees responded by filing general issue pleas to the plaintiff’s declaration on November 23, 1965. After certain preliminary motions, the appellees filed, on April 29, 1966, a counterclaim in the amount of $4,000, alleging that the work was not done as provided, that it was not done in a good and workmanlike manner, that Globe had negligently damaged the building and shrubs on the premises, that it had left hazardous conditions in the form of exposed electric wiring and that numerous subcontractors were employed, while the Hoods had requested that none be ⁷²¹ used.

On June 22, 1966, the date of the trial, the appellant made a motion ne recipiatur as to the counterclaim on the grounds that it was filed long after the time for filing a declaration and counterclaim had passed pursuant to Maryland Rule 314 and that it was filed after preliminary law motions, depositions, and discovery had been taken. The court granted this motion. At the same time the appellant moved to amend its original declaration by increasing its claim to $3090. This motion was also granted.

Following testimony and argument of counsel, Judge Macgill, sitting without a jury, awarded judgment nisi for the plaintiff in the amount of $1507. This judgment was made final on June 28, 1966. On July 19, 1966 the plaintiff moved that the case be reargued, but this motion was denied after a hearing. From the judgment entered and the denial of the motion for re-argument, this appeal was taken.

The appellant urges us to reverse the judgment, claiming that the trial judge erred in permitting appellees’ expert witnesses to testify and that that court erred in its failure to grant appellant’s motion for reargument. We treat the motion as one made under Rule 625 for modification or revision of the judgment. We find no merit in either contention. During the preliminary proceedings in the case, in the course of taking depositions on March 2, 1966, appellant’s counsel asked Mr. Hoffman, counsel for the appellees, whether appellees anticipated that experts would be called to testify and was informed that they had talked to contractors who had looked at the work, that they planned on calling them, and that they also intended to call certain experts to testify as to the value of the work done.

At that time the appellees did not know whom they planned to call but promised to tell appellant’s counsel at a later date. At the trial, counsel for the appellees admitted that he had erred in not notifying appellant of the names of the witnesses that they planned to call. The witnesses in question were Frederick A. Wilkes, who had been a general contractor for twenty years and a carpenter for twenty-five years; and Eskil M. Ohlson, a photographer, who took pictures of the work involved. These witnesses were allowed to testify over objection by the appellant’s counsel.

Wilkes’ testimony was to the effect that the quality of ⁷²² the work was inferior and not done in a good and workmanlike manner. The photographer merely identified the pictures and the time when they were taken. The appellant claims that allowing these witnesses to testify took it by surprise and that it was thereby prejudiced. This claim, however, is not borne out by the facts.

It was manifest, both from the answers given at the depositions and from the contents of