Globe Home Improvement Co. v. McCarty

Henderson, J., delivered the opinion of the Court. This appeal is from a judgment of $3,431.40 in a contract case tried before the court without a jury. It was conceded that the appellant, having a contract to renovate the post office building in Baltimore, entered into a written sub-contract with the appellee on April 24,1950, whereby the latter undertook to perform certain work on the floors at a price of 9c per square foot. The appellant contends that this contract covered not only the sanding and sealing of the floors, but also the waxing thereof.

The appellee contends that the contract did not include waxing, and that a separate oral contract was later made whereby he agreed to wax the floors at a price of 3c per square foot. Section 2 of the sub-contract of April 24, 1950, signed by McCarty and Raymond L. Pursley on behalf of Gaybis, provided that “the materials to be furnished and the work to be done by the sub-contractor are according to plans and specifications under section seven (7) Floor Sanding.” Section 4 provided that “the contractor agrees to pay the sub-contractor for the performance of his work the sum of nine (.09). cents per square foot in current funds, floor seal furnished by us, subject to additions and deductions for changes as may be agreed upon, * * *.” These are the only sections that have any ⁵¹⁶ bearing upon the kind or quantity of the work. It may be noted that waxing is not mentioned. ( Section 7 of the general specifications in the principal contract, under the heading “Floor Repairs” does not mention waxing under the heading of “extent of work” although there are references to laying new floors, repairing and replacing others, sanding and sealing; but under the heading “floor treatments”, section 7-17 calls for the application of “two coats of finish material” after the second coat of sealer is dry.

Section 7-24 specifies the type of finish material as “a water emulsion floor wax”. Section 7-14, under the heading “sanding”, deals with that operation alone. It is clear that section 2 of the sub-contract did not cover all of the work mentioned in section 7 of the general specifications, and it is only by implication from the reference to “floor seal” in section 4 of the sub-contract that it could be extended beyond the “Floor Sanding” specified in section 2. Thus, we think the sub-contract was sufficiently ambiguous to permit testimony as to the surrounding circumstances and subsequent conduct of the parties as an aid to its interpretation, and, indeed, it does not appear that any objection to the testimony was made below or in this Court, on this ground.

Instead, the appellant argues that the testimony on both sides “establishes a usage existing as between the parties to the contract whereby the word ‘sanding’ meant a complete and finished job”. But the testimony of the appellee is that he was only “supposed to sand and seal”, and the waxing “was supposed to be eliminated”. He claims that Pursley told him so. Myer Gaybis, the appellant, admitted that “the terminology is