Harrison v. McLaughlin Bros.

Boyd, C. J., delivered the opinion of the Court. This is . an action of assumpsit by the appellee against the appellant for a balance alleged to be due for labor done and materials furnished under an agreement to build a warehouse. The parties entered into a written contract, under seal, which recites that the party of the first part (appellant) contemplated ⁴²⁹ erecting a factory building upon land owned by him, that the parties of the second part (appellee), described as constructing architect’s and engineers, had prepared plans and specifications for the erection of the building, “and have prepared estimates of the cost thereof, and by such estimates the entire cost of said building, including plans, specifications, supervision and commission, will not exceed twelve thousand dollars.” It was agreed that the appellee would furnish the plans, specifications and details for construction, superintend the erection and “purchase on behalf of and as the agents of the party of the first part all the necessary materials, and likewise employ-all necessary labor and incur all other necessary cost for the proper construction of the said building according to the said plans and specifications.” The appellee also agreed to furnish the appellant a weekly statement of all materials purchased, of all labor employed, and every other reasonable statement required by him. The appellee agreed to render faithful service to the appellant, to purchase the materials and employ the labor at the lowest possible cost and not take for itself any discounts on materials furnished, or labor supplied, but to-give the appellant the benefit thereof and of any wholesale prices the appellee might obtain.

After providing for a liability policy, to be procured by the appellant, but tobe included in the total estimate for the construction of the building, these provisions follow: “The party of the first part on Saturday of each week will furnish the necessary monej' to carry on such work and pay for material and for the weekly payment of labor and all other actual expense as the same shall be required by the party of the second part. The party of the first part agrees to pay to the party of the second part for all services in connection with the said building, so rendered or to be rendered by the party of the'second part, including the furnishing of plans, drawings, elevations and specifications, an amount equal to ten per cent of the total cost of the building. The plans and specifications referred to in this contract are the same plans and specifications which have been submitted to the party of the first part by the said second party and are ⁴³⁰ referred to in this contract with the same force and effect as though they were annexed hereto.” It will thus be seen that the appellee was to act as' agent of the appellant in purchasing materials, employing the necessary labor and incurring all costs, and that the appellant was to pay it for all its work, including plans, specifications, supervision, etc., “an amount equal to ten per. cent of the total cost of the building.” Although there is a recital in the contract that by the estimates the entire cost would not exceed $12,000, there is no covenant or agreement that it should be so limited, ■and the plaintiff's testimony tends to show that the increased cost was the result of changes made by the appellant — having rented the building for a chocolate manufactory, instead of for a laundry and other purposes originally intended. Mr. McI.aughlin, secretary and treasurer of the appellee, testified that the changes entailed an additional cost of $5,430.90 including a foundation, which it was thought would not be necessary.

The account filed with the declaration states the total cost of the building, including the ten per cent, to be $17,687.25 and allows credits paid by the appellants amounting to $17,021.85, leaving a balance claimed to be due of $665.40. One of the questions which entered largely into the trial of the case was whether the plaintiff could under the contract recover commissions on the cost above the $12,000. We have already intimated that there is nothing more than an estimate of the cost in the contract, but, of course, the appellee, as agent of the appellant, was required to act in good faith and render faithful service to him. If the jury believed the testimony of the plaintiff, as to the cost of the changes which were made at the instance of the defendant, there was little or rro room to question the good faith of the appellee on that ground, and, unless the contention of the appellant is correct, that the changes were not authorized by reason of a provision in the specifications, made part of the contract, there is nothing to prevent a recovery of the “ten per cent of the total cost of the building.” The provision referred to is: “The owner reserves the ⁴³¹ right, through the architect, at any time during the progress of the work, to make any additions to or deductions from the work without impairing the contract, but no work shall be considered as ‘extra world unless a written order directing the same to be executed is issued, signed by the architect, and approved by the owner, and given to the contractor.” Although the Court below seems, by granting the appellant’s eighth prayer, to have adopted his theory as to that provision it seems to us to be clear that it is not applicable to what was .to be done by the appellee.

James McLaughlin testified, without objection, that “the first nine pages and the first three lines of the tenth page of the typewritten copy of the specifications were intended to apply to such contracts for special portions of the work that they might find it desirable to have done by contract rather than to do the work themselves as the agents of the defendants. That such contracts were let during the progress of the work, as for instance, the painting, plumbing, roofing and stone work. That only that portion of the specification below a dotted line on page ten, and the succeeding pages of the specifications were intended to apply to the work of the plaintiff in the contract of March 30th.” The provision with reference to “extra work” is above the dotted line, and it would seem to be clear that it was not intended to apply to the arrangement between the appellant and the appellee excepting where contracts were let to others. The contract itself in terms speaks of the relation between them as that of principal and agent, and not that of contractor and contractee.

The appellee was the architect and it would have been remarkable to require if to give a written order “directing the same (extra work) to be executed” by itself as •“contractor.” There are many provisions in the specifications before this clause which conclusively show that the appellee was not understood to be the “contractor.” For example, the contractor is required to remove materials, etc., condemned by the architect, and substitute for them satisfactory materials, etc., and if the removal was not begun in twenty-four’hours after notice, the architect was empowered to remove them at ⁴³² the expense of the contractor, and all costs were to be deducted from moneys due or to become due on the contract. As the appellee was the architect it surely was not the contractor within the meaning of that provision, as it would have been absurd to provide for its condemning its own materials, replacing them with others and deducting the cost. These and other provisions would be in direct conflict with the terms of the written contract, and we must assume that the uncontradicted statement of Mr. McLaughlin gave the correct version of the intention of the parties. Before considering the exceptions, it would be well to observe that the fact that the original agreement was under seal does not prevent the suit in asstimpsit, for the balance due from being maintained.

Under our construction of the agreement there was no provision for extra work, except as applicable to other contractors, and hence there could be no recovery for it under that agreement, but it must be recovered, if at all, in assumpsit, i Poe, sec. 150. The evidence on behalf of the plaintiff was that new plans were made out and the work was done according to them. There was unquestionably evidence tending to show that the extra work was done at the instance of the' defendant, and that it was accepted by him. But even if it be conceded that the original agreement was not waived and a new one substituted for it, the recovery sought in this case is for the balance of the excess over the $12,000 contemplated by that agreement.

The defendant testified that he had paid the “commission up to $12,000; and a fraction over, but not much,’’ and, as he had paid all except the balance of $665.40, it is manifest that the plaintiff was seeking to recover for a part of the “extra work,” which we have said could not be recovered by an action of covenant on the agreement under seal because it is not therein provided for. It is proper, however, that the commission fixed by the agreement control the parties. As is said in 1 Poe, sec. 103, in reference to recovery for extra work not specified in the contract, “if the original contract has not been lost sight of in the work as actually done, it will be applied as far as it can be traced; and ⁴³³ the contract prices shall govern, even as to the extra work, wherever practicable. Nor will the jury be warranted in departing from the contract prices, except in cases where the cost of the work or materials has been enhanced by the fault of the defendant.” ■ An action of assumpsit might also be sustained on the ground that the plans referred to in the agreement were abandoned and new ones substituted by parol agreement, under such cases as Watchman v. Crook, 5 G. & J. 2395 Insurance Co. v. Hamill, 5 Md. 170 ; Orem v. Keelty, 85 Md. 344 . .

Having said this much in reference to the contract and specifications, and of the form of action, some óf the questions raised will be simplified, and we will now consider the exceptions in the order they are found in the record. - 1. The first was to the following question: “You have answered a question that I did not ask you, but I will now ask you what is the usual commission charged by builders where they supply plans' and specifications and supervision on a percentage on the cost of the work.” It is difficult to see the relevancy of that question, unless it was perhaps intended to reflect upon the good faith of the appellee. The answer was “From 10 per cent to 15 per cent.” But as the prayer granted on behalf of the appellee expressly limited the amount to ten per cent, and that is the sum fixed by the contract, and the verdict was only for that amount and interest, the appellant was not injured and hence there was no reversible error in allowing the question. 2. At the conclusion of the plaintiff’s case, the defendant made a motion “to exclude from the consideration of the jury the testimony of the witness, McLaughlin, and the testimony of the witness Dowd fixing the cost of the erection of the plaintiff’s warehouse upon the basis of the measurement thereof as testified by said witnesses.” The testimony intended to be excluded by the motion had been admitted subject to exception.

The witnesses had undertaken to show what would be the usual way in which a contractor would estimate the cost of a building where the plans and