Lohmuller Building Co. v. Barrett

Digges, J., delivered the opinion of the Court. On May 14th, 1923, the Lohmuller Building Company, of Baltimore City, the appellant, brought suit in the Court of Common Pleas of Baltimore City against the appellee here, defendant below, Florence S. Barrett, under the Speedy Judgment Act applicable to Baltimore City, for the sum of $2,103.48. The declaration contained the common counts, and the account accompanying the declaration showed that the sum claimed was for balance due for repairs and work incident to the remodeling of a house located on Raynor Avenue in the City of Baltimore, known as No. 2827 Raynor Avenue. The agreement to remodel the house1 was in writ ing, signed by the appellant and appellee as contracting parties, and was as follows: “The Lohmuller Building Company, “Per John AT.

Lohmuller, Pres. “Specifications for Alterations to Residence of Mrs. Barrett, 2827 Raynor Avenue. “Carpenter AFork — Repair front and rear porch, fix front cellar window, partition off room on third floor and first floor for bath and cut middle room on second floor into two rooms. Small hall on second and third floor to be removed. “Plastering — Plaster new partition and point up whore old plaster is damaged by repairs with two ⁶²⁰ coats of plaster consisting of a brown and skim coat, or cover same with sheet rock. “Plumbing — Install one complete bathroom on first floor, and one complete bathroom on the third floor, and one sink and drain board on third floor. Fixtures to consist of following: 5-ft. enamel bathtub, 18x20, enamel lavatory roll rim. Low down porcelain closet combination with mahogany seat, 18x24 enamel sink and 18-in. drain board.

Run gas line for kitchens for range. “Painting — Paint entire home inside and out with two coats of paint of Lewis or Eagle lead and pure linseed oil. “Papering — Entire inside of home except first floor kitchen and bathroom ceilings to be papered with good quality wall paper selected by owner not to exceed in cost ($150.00) one hundred and fifty dollars. “Electric Wiring — Wire entire home for electricity in accordance with city code. “Electric Fixtures — Install a neat design of electric fixtures in each room. “Heating — Install one pipeless furnace of size sufficient to give heat to entire home. “Sheet Metal — Repair spouting and gutter where necessary. “Roof — Cover roof with two coats of Orescent roofing surfacer. “Cementing — Cement cellar with cinder concrete, using ashes that have been accumulated in cellar now. “Cleaning Up — On completion clean up all rubbish and waste accumulation during repairs and leave premises free from rubbish due to construction work. “Terms — The work herein represented financed by securing mortgages to cover cost of repairs and release of mortgage now existing on property. Cost of financing same to be paid for by owner. Payment on mortgages not to exceed fifty ($50) dollars per month. The Lohmuller Building Co. undertakes to negotiate and secure mortgages in this clause mentioned, and that the mortgages to be secured shall be sufficient to cover the work provided for in this contract, the re ⁶²¹ lease of the present mortgage on the property, and all expenses incident to the new mortgage.” Witness then read a paper attached to the contract, which :is as follows: October 10, 1922. “To removing back stairway and building steps to back from second floor down.

Cost to be one hundred dollars added to contract price. “Lohmuller Bldg. Co., “Accepted: G. B. Lohmuller, Sec’y. “Florence S. Barrett.” The Case was tried before a jury and resulted in a, verdict and judgment for the defendant. During the progress of the trial there was reserved by the appellant four bills of exception, three to the rulings of the court on the evidence and the fourth to the action of the court in its rulings upon the prayers. The facts as disclosed by the record are substantially these: That Florence ;S. Barrett, the appellee, was the owner of the house located as stated, the same being an old three-story brick house1 which at the time the contract was entered into was subject to a mortgage of some $400 or $500 held by the Waldorf Building Association, the payments on this mortgage-being in arrears and the building association demanding payment under threat of foreclosure; that Mrs. Barrett had no money but was anxious to have the property remodeled so as to provide three apartments which could be separately rented, thereby increasing the revenue which she might receive from the property; that she was living in this house and continued to live there during the time in which it was remodeled: and subsequently occupying the apartment on the first floor and renting those on the second and third floors; that having no money and wishing to remodel the property, she wrote a letter to Mr. Lohmuller, and he or Ms brother called upon the appellee and after negotiations agreed to remodel the property and also finance the cost of doing so; that Mrs. Barrett was not to put up any cash, but the -Loh-muller Building Company undertook, in addition to doing ⁶²² the work, to finance it, and the proposal of the company was reduced to writing and submitted to Mrs. Barrett, and by her to her counsel, who required the Lohmuller Building Company to prepare specifications in detail showing what work was to be done.

These negotiations culminated in the contract as herein-before set forth, the contract price, as agreed, being $3,025 and the terms of payment being as contained in the contract: “The work herein represented financed by securing mortgages to cover cost of repairs and release of mortgage now existing on property. Cost of financing same to be paid for by owner. Payment on mortgages not to exceed -fifty ($50) dollars per month. The Loh-muller Building Go. undertakes to negotiate and secure mortgages in this clause mentioned, and that the mortgages to be secured shall be. sufficient to cover the work.provided for in this contract, the release of the present mortgage on the property, and all expenses incident to the new mortgage.” This contract was dated September 14, 1922, and subsequently, on October 10, 1922, there was an addition made to ithe contract, in writing, providing for the- removing of the back stairway and building steps on the back from the second ffioor down, the additional cost of which was $100, to be added Tto the contract price.

Among the specifications provided :for in the contract was one that the appellant should install •a pipeless furnace “of size sufficient to give heat to entire home.” The work under the contract was started about the latter part of September, 1922, and was supposed to be completed about the latter part of December of the same year. During the progress of the work, from the beginning and down to the time of the trial in the lower court, numerous ■complaints were made by the appellee, either directly or through her counsel, that the work being done and apparently completed was most unsatisfactory, and not in accordance with the terms of the contract or specifications, this being particularly true in respect to the heating plant, and in the ⁶²³ winter of 1922-1923 tbe appellee was unable to beep tenants in the property by reason of the fact that she was unable to heat it, and she was therefore obliged to reduce the rent and make, allowance to the tenants for their expense in heating their own apartments. In response to these complaints the appellant sent various workmen back to the property a number of times to do additional work on the contract which they were supposed to complete, this .appearing to be true of the paper-hanging, the spouting and guttering on the property, leaking roof, and the pipeless furnace; these various endeavors, to remedy the defects complained of, continuing to* the date of trial in the court below. It appears that the defects, other than the lack of heat, were substantially remedied and either accepted or waived by the appellee.

There was no payment made upon the contract price by the appellee, except, that in December, 1922, the appellee, at the request of the appellant, executed a first mortgage on the property to the American Fire Insurance Company for the sum of $1,500, which sum was applied by the appellant to the settlement of the mortgage due the Waldorf Building Association, and, after deducting the expense incident to the new mortgage, the balance, amounting to $1,084.01, was applied by tbe appellant in part payment of the contract price, this being done without opportunity being afforded to the appellee or her counsel to indicate the use to, which this balance was to-be applied. Tbe evidence does not leave room for doubt that the pipeless furnace never reasonably heated the premises and, in the opinion of -a number1 of witnesses-, including representatives of the appellant, the pipeless furnace installed could not he made to heat the entire house. ■ The record further discloses that the appellant offered to remove the pipeless furnace and install a steam heating plant, if the appellée would pay the difference in the cost. This the appellee refused to do, and also refused to execute the second mortgage upon the property, by which it was proposed, according to tbe terms of the contract, to secure sufficient money to complete the payment for the alterations and repairs. Upon this ⁶²⁴ state of the case tbe appellant brought suit on the common 'counts and filed therewith the following account: “Florence S. Barrett to The Lohmuller Building Company, Dr.: “To agreed price for repairs...$3,025.00 Agreed price for extra work. 100.00 Insurance . 11.25 $3,138.25 December 8th, credit.•. 1,084.07 $2,052.18 “Interest on balance from Dec. 8 to Hay 8.. 51.30 “Total.$2,103.48” The contract was offered in evidence by the appellant.

At the close of the testimony offered in behalf of the plaintiff and defendant, plaintiff offered four prayers and the defendant one prayer. The court granted the plaintiff’s first prayer and refused its second, third and fourth prayers, and granted the prayer of the defendant. To the ruling of the court in refusing the plaintiff’s second, third and fourth prayers and -granting the defendant’s prayer, the plaintiff excepted, and ■this action constitutes the fourth bill of exception, which we -will first consider. The plaintiff’s second and fourth prayers ■were predicated upon the theory that there had been a substantial compliance with the written contract