Graham v. Cooper

³⁵⁹ Pattison, J., delivered the opinion of the Court.- The appellant in this case, John S. Graham, a Lieutenant Commander in the IT. S. Bavy, and the owner of a lot of land at Wardour Bluffs, near the City of Annapolis, entered into a written contract with the appellant, Philip B. Cooper, a builder and contractor of Annapolis, Md., dated the 5 th day of May, 1910, by which the appellee was to build and construct for him a frame cottage on said lot of land. By this contract the appellee was not only to do the work, but was likewise to furnish the material to be used in the construction of said cottage. The work to be done and the material to be used were to conform to the specifications thereto attached and made a part of the contract.

The house was to be completed not later than the 1st day of September, 1910, at which time, or upon its completion, ready for occupancy, the sum of $4,400 was to be paid therefor to the appellee by the appellant. Upon the 1st day of September, 1910, the house was not completed and ready for occupancy, and on the 3rd of September following a supplemental agreement was entered into by and between the appellant and the appellee. By the last agreement or contract the time in which the building was to be completed was extended to the 1st day of October, 1910, at which time it was to be completed and ready for occupancy. But the contract further provided, that should the appellee fail to complete the building at the time named therein, he was to pay to the appellant, as liquidated damages, the sum of five dollars per day, commencing with the 1st day of September, 1910, “until the building was completed and ready for occupation.” It was further provided therein, however, “That the said John S. Graham is not to be unreasonable in his interpretation of the phrase ‘completed and ready for occupation,’ but in matters of trifling moment may accept the said building, occupy the same and retain from tbe contract price such sum or sums of money as may be sufficient to complete the work in every ³⁶⁰ detail and particular.” In all other respects the original agreement or contract was unchanged and was to remain in full force and effect.

On October 1st, as alleged by the appellant, the building was still unfinished and not ready for occupancy. On October 13th, however, the appellant moved in and occupied the building; at which time, as he alleged, the building was still' incomplete and unfinished. The record discloses by correspondence and otherwise that the- appellant was dissatisfied with the work done and material furnished by the appellee upon and in the erection of said house,- and contended that the work had not been completed,- and after the payment by him, in all, of the sum of $3,955.54,. the last payment being made on the 8th day of October, 1910, he refused to pay more so long as the conditions-of which he complained continued to exist. On the 16th day of December, 1910, the balance of said contract price, $444.46, as claimed by the appellee, and the further sum of $25 for extra work likewise claimed -by the appellee, not having been paid, the appellee filed his mechanics’ lien against said house and lot of land for the sum of $469.46.

On the 30th day of December he filed his bill in the. Circuit - Court for Anne Arundel County for the enforcement of his mechanics’ lien claim against the appellant and the “Workingmen’s Building and Loan Association .of Annapolis, Anne Arundel county, Maryland,” a corporation to which the appellant, by deed of mortgage, had ■conveyed said property to secure a loan from it to him. In his bill he asked for a sale of the property described in said lien, and that the proceeds thereof be distributed to him as lien or under’the order of the Court. The defendant answered the bill, denying the allegation therein contained that the building was erected and completed in compliance with the terms of the contracts and ■specifications mentioned,, and alleged that it was at such time “in an incomplete condition, requiring and necessitating the expenditure of considerable sums of money to make ³⁶¹ the same conform to the provisions, requirements and stipulations of said contracts, plans and specifications;” and that such incomplete condition of the building was due to the neglect and failure of the plaintiff to complete the same in accordance with the terms of said contracts, plans and specifications.

And in his answer he denied that he was owing unto the appellee the sum of $469.46, as alleged in the bill, but charged that “by reason of his (plaintiff’s) neglect, mismanagement and flagrant disregard of the terms and requirements of the said contracts and specifications he has been.more than compensated for such work as he has done and materials furnished in and about the erection of said building.” Upon the bill, answer and evidence the- Court below granted a decree as prayed, after first having- reduced the amount claimed to the extent of $35, of which $25 was for extra work, which the Court held had not been properly proven, and $10 for work that the appellee agreed to do and which was not done. It is from that decree that this appeal is taken. The appellant contends: First — That by a reasonable interpretation of the phrase “completed and ready for occupation,” found in the supplemental contract, the building was not .completed and ready for occupancy on the 1st day of October, 1910; and, therefore, by the provisions of said supplemental contract he was entitled to the liquidated damages of $5 for each and every day the -building remained incomplete and not ready for occupancy from the said first day of September until it was completed and ready for occupation, which was, as he alleges, not earlier than the 7th day of October, 1910. Second — That the property has never been completed in conformity with the terms and provisions of the aforesaid -contracts and specifications, and that the amount required to complete the work in respect to those things which have not been done, and the loss and injury sustained by him by reason of the failure of the appellee to perform the work ³⁶² that has been done, in accordance with the terms and provisions of the contract, together with the liquidated damages, to which he claims he is entitled by reason of the failure of the appellee to complete the building, ready for occupancy on the 1st day of October, is in excess of the amount of the contract price remaining unpaid; and thus no part of said contract price was, at the time of the filing of the mechanics’ lien or now, owing unto the said appellee.

We will first consider the second contention. We shall refer only to such parts of the specifications, which are quite voluminous, as are involved in the contentions as we have stated them. The specifications first provided that “All work as described herein, or shown on the drawings and any work necessary to the thorough completion of the work so-described or shown, is to be executed in the most workmanlike manner, and where work and material are not specially mentioned they are to be of the highest grade and best adapted to the purpose. All materials are to be the best of their respective kinds in ample quantities.” As we have said, the appellant contends that much of the work that was, to be done under the contracts and specifications has not been done, and that much that was done was improperly done.

In his testimony he-names these omissions and defects, some of which are: that the cellar floor was not laid so as to drain to the trap or sink in the center as it was intended, and that when the water was-turned on it would run all over the floor before running out through the trap; that the plastering, particularly in the kitchen, was bad; that the pointing up over the doors and windows was of the crudest sort of work; that the floors had not been planed, cleaned and oiled, as provided for in the specifications, even the joints and butts were not planed off except in some cases; that the switches for the-electric wiring had not been put in place in three or four rooms; that the correction to be made in the back porch by the supplemental agreement was not made;'that the dormer ³⁶³ window on the northwest side of the house was not weather tight, the rain blew in all around the weather framing and the wind came through both sides of the dormer, and the water leaked through into the bedroom below; that the moulding under the window framing was entirely missing; that there was no building paper on the side of the dormer under the shingles; that the chimney of the house leaked badly; the chimney flashing was not placed properly and was not made water tight where it joined the chimney; all along the beams of the pergola nearest the front of the house the tile on the outside wall had never been covered with even a sizing or coat of cement in any way, that it was still exposed to the weather; that the double doors on the porch fitted so badly that the lock provided for the door will not reach across the space between the doors when they are closed; that the flooring is in pieces and does not reach to the wall, especially in the dining room under the radiator; the wood work behind the radiators is not painted; that under the front door threshold there is a slit three feet long by three-fourths of an inch wide leading directly into the cellar; that there were leaks in the cellar on the southwest side and leaks through the steps on the northwest side. In addition to these defects, the chimney was built with three flues when the contract called for four. George W. Evans, a carpenter and builder, with twenty years’ experience, who had visited’ the house and inspected it, was produced by the appellant as a witness and testified as to the defects named by the appellant in his testimony. He spoke of the plastering as being an ordinary job, not what it should be — a first-class job; that it wasn’t a sand finish as he understood such finish; that there were some very bad cracks and it was not finished smooth, that the sand would leave the wall, it would rub off as though there was nothing “to it”.

When asked how this defect could be cured, witness stated that the only thing he knew was to finish it with water colors, and before doing that to use ³⁶⁴ glue sizing, that might hold the sand to the wall and stop the loose sand from falling off. To do this he estimated the cost at $120 or $125. He also spoke of the leaks around the windows, the cost of which he said was hard to estimate, for this, however, he allowed $40. He testified that there were a great many radiators where the wash-hoards behind them had not been painted; to complete this work he allowed $5, and for the leak around the dormer he allowed $5.

As to the cellar, he stated there was a good bit of water in the cellar at the time he saw it; around the bottom of the cellar wall it was very wet and looked as though it came in under the end wall, but that he couldn’t say positively, some may have come down the cellar door ; it was difficult to locate where the water came in; there were two leaks in the cellar; that it was hard to estimate the cost of correcting these defects, “that it was a hard thing to get at,” but said “I allowed $50 to stop that leak,” that is, both leaks. He also noted the absence of the push buttons and electric switches, but as to these he could not make an estimate. He estimated the difference in the cost of the chimney with three flues and four flues at $30 or $35. He also observed the rough casting behind the beam on the front porch, and estimated the cost of correcting that defect at $10.

He also observed the opening under the front door, through which, when standing in the cellar, he could look out upon the Severn river; the cost of curing this defect, however, he said would be about $2. The change to be made in the back porch would not cost, he said, over $10. The work to the cellar floor to make it drain to the outlet in the center, would, he said, cost about $35. His attention was then called to the provision in the specifications which reads: “Flooring: To be clear of knots, holes, blemishes of any kind, planed, smooth, cleaned and oiled,” and he was asked as to the meaning of that provision, to which he replied that by his interpretation it meant that the whole surface of the floors should be planed, cleaned and oiled, and that this was not done, some of the high ³⁶⁵ places and headers had not been struck down.

To plane the floors he estimated the cost- would be $50. He further testified that the work was not done in accordance with the contract, at least in respect to the defects and omissions stated above by him. He also stated that there were other small things that were not in strict conformity with the plans and specifications; these he did not make a list of and to do so would require him to go over them again. William H. Gibbs, foreman mason at the TJ.

S. Haval Academy, whose trade was that of bricklayer, stone mason and plasterer, testified, when produced by the appellant, that he examined the premises of the appellant and the plans and specifications under which the house was built; he did not think the plastering a good job, and saw no way to correct the defects but to replaster it, but made no estimate as to what the cost would be to do this. He examined the cellar, saw the defects to which his attention was called, but did not think it was a spring. He construed the provision in respect to planing the floors in the house as meaning that they should be planed all over. The defects in the plastering he thought were not due to the workmanship, but in the manipulation of the material; that it was not done in accordance with the plans and specifications.

He said the plastering was..faulty in that it sifts sand, that “if you draw your hand over it you can rub sand off the wall, which shows that the material has been killed in the working of it.” The appellee when offered as a witness in his own behalf, when asked whether or not the contract was completed by him in accordance with the specifications, said “I do not know any case where it wasn’t. And when asked “Has this contract been finally and fully completed by you in furnishing the work and material in conformity with the terms ?' He replied “Yes.” He with Mr.