L. L. Bush & Co. v. Baltimore & Catonsville Construction Co.

Briscoe, J., delivered the opinion of the Court. These cross appeals are from a decree of. Circuit Court No. 2 of Baltimore City allowing damages for the alleged breach of a contract for the delivery of gravel for ballasting a line of railway between Laurel and Paint Branch, Maryland. L. L. Bush and Co., the claimants or plaintiffs below, were railroad contractors and during the year 1896 made two contracts with the Baltimore and Catonsville Construction Company, the defendant below, and a ⁶⁶⁷ corporation which had been chartered for the purpose of constructing a double-track electric railway between Baltimore and Washington, D. C., for the Columbia and Maryland Railway.

There was no dispute as to the balance due upon the contract for grading four miles of road between Laurel and Muirkirk, Maryland. This amount was paid and is not therefore involved in these appeals. But the controversy here grows out of the contract to ballast the road with gravel between Paint Branch and Main street at Laurel and for the breach of which Bush and Company claimed damages to the extent of $28,000. The Court below awarded them the sum of ten thousand dollars with interest from August 30, 1896, and costs, and from this decree both parties have appealed.

The plaintiffs’ claim is based upon an estimated profit of fifty cents on 56,000 cubic yards of gravel which they contend would have been made by them had the contract not been broken and they had been permitted to complete it. The claim is resisted by the Baltimore and Catonsville Construction Company upon three grounds, as alleged by them: First, because the Construction Company only contracted for the delivery of 25,000 cubic yards of gravel. Second, because the plaintiffs, Bush and Company, were not ready, able and willing to deliver the 25,000 yards contracted for by the 30th of August, 1896, and could not have performed their contract. Third, because even if they were able and willing to perform the contract they could not have made any profit.

The law applicable to a case like this has been definitely settled. In U. S. v. Behan, 110 U. S. 344 , the Supreme Court says: “ The prima facie measure of damages for the breach of a contract is the amount of the loss which the injured party has sustained thereby. If the breach consists in preventing the performance of the contract without the fault of the other party, who ⁶⁶⁸ is willing to perform it, the loss of the latter will consist of two distinct items or grounds of damages, namely, first, what he has already expended towards performance (less value of materials on hand); secondly, the profits that he would realize by performing the whole contract. If he goes also for profits, then the rule applies in Speed’s case ( 8 Wall. 77 ), and his profits will be measured by the difference between the cost of doing the work and what he was to receive for it.” And this Court, in the recent case of Baltimore & Ohio R. R. Co. v. Stewart, 79 Md. 499 , in adopting the rule established by the Supreme Court in Behan’s case, supra, Speed’s case, 8 Wall., and in P. W. & B. R. Co. v. Howard, 13 Howard 307 , says: “The plaintiffs are entitled to recover such an amount as the jury may find will compensate them for the loss, if any, which they may have suffered by reason of the stopping of the work by the defendant, the measure of damages being the difference between the amount which they would have been paid for the said work when completed, at the contract price, and what it would have cost the plaintiffs to do and complete the same.” We come then to a consideration of the facts of the case, as contained in the record.

The contract or specifications for gravel ballast, is in these words: “ The gravel to be screened, clean gravel, free from sand, loam, clay or other foreign substances; the greatest diameter of any stone not to exceed two inches, and the least to be not less than one-fourth of an inch. To be delivered on the road-bed of the Columbia and Maryland Railway between Paint Branch and Main street, at Laurel, and spread in two beds of ten feet each in width, and eight inches in depth, conforming to stakes which will be furnished. Also, two rows of gravel to be piled on the outside of the beds sufficient in quantity to measure 3/10 of a cubic yard in each row per linear foot. “ Deliveries to commence on or before June 13th, 1896, and to be completed on or before August 30th, 1896, and not less than 8,000 cubic yards shall be deliv ⁶⁶⁹ ered and spread as aforesaid, within any one month from the date specified for the first delivery. The rails of the Columbia and Maryland Railway Company will be allowed to be used in distributing the ballast, provided the contractors return the rail in the like condition as when delivered them.

The 85-lb. rail will be delivered on the B. & O. cars at Muirkirk; the contractors to take it at this point. And for doing and performing said work in the manner and in the time aforesaid, the said Baltimore and Catonsville Construction Company agrees to pay to said L. L. Bush & Co. one dollar and fifteen cents ($1.15) per cubic yard, measured when delivered and spread and piled upon the road-bed of the Columbia and Maryland Railway aforesaid. “Payments to be made on the 15th of each month for the deliveries made in the previous month, less iof0, which percentage shall be reserved until the contract has been completed, and when said contract has been completed and accepted by the said Columbia and Maryland Railway, if within the time and manner herein specified, The Baltimore and Catonsville Construction Company will pay to the said L. L. Bush and Co. the balance due under this agreement, it being distinctly understood and agreed that the time is made the essence of this agreement. “ Should said L. L. Bush & Co. fail to deliver the quantity of gravel per month hereinbefore stipulated, the President of the Baltimore and Catonsville Construction Company shall, and he is hereby authorized, to contract for such ballast as may be required to comply with the terms of this contract, applying the same and deducting the cost thereof from any moneys due or to become due to said L. L. Bush and Co. under this contract. “ As witness our hands, this 29th day of May, 1896. L. L. Bush & Co. (Seal) By P. D. Peters. The Baltimore Catonsville Construction Company, By H. T. Douglas, President.” ⁶⁷⁰ While these specifications may be somewhat indefinite as to the quantity of gravel to be delivered, yet the specifications and correspondence between the parties when taken together, we think, clearly indicate that the contract was for the delivery of 25,000 yards, and not for 56,000 as contended for by the plaintiffs.

It appears from the letter of Col. Douglas, the president of the company, dated May the 15, 1896, that he writes as follows: “ In reply to your favor of the 15th ” (meaning a letter from the plaintiffs), “ I will be glad to receive a proposal from you for furnishing and spreading on the line of this road between 6th and Main street, at Laurel and Paint Branch, say 25,000 yards of broken stone for ballast.” And in reply to this letter, Bush and Company write on May 20th: “We are prepared to deliver to you from 25,000 to 40,000 yards of clean screened gravel for ballast at rate of 300 to 600 yards per day; delivery to commence within two weeks from date of contract.” And on June 8th, in reply to an application by Bush & Co. for an extension of time for the delivery of the gravel, Col. Douglas writes: “ I cannot extend the time for the delivery of ballast beyond August 30th. If you begin delivery June 15th, it will give you 75 days and you ought, in this time, to deliver 25,000 cubic yards.” These letters, with the other testimony upon this branch of the case, sustain the construction placed upon the contract by the defendants, that the plaintiffs were to deliver only 25,000 yards of gravel.

The 56,000 yards are nowhere mentioned in either the specifications or the correspondence between the parties. We come now to the defendant’s second objection and that is as to the ability and readiness of plaintiffs to perform the contract by August 30, 1896. The evidence upon this question is somewhat conflicting, and we will quote from such parts of it as we find necessary for the decision of this case. Now it is admitted that the work was stopped by direction of the defendant corporation in its letter of July 30th, in which it is stated: “ Until further notice ⁶⁷¹ suspend the delivery of gravel ballast under your contract with this company, signed, H. T. Douglas, President.” It also appears that at this time the plaintiffs (Bush and Co.) had expended for the cost of the plant erected by them to execute the contract, the sum of $12,500, in addition to the cost of the steam shovel which they had on hand, aggregating the sum of $13,008.76.

The witness Whitman testified that by working ten hours per day and ten hours per night for say twenty-two days, making allowance for Sundays and rainy days, would credit the steam plant with 34,000 yards,