Mayor of Baltimore v. J. A. Kinlein & Co.

Thomas, J., delivered the opinion of the Court. This appeal is from a judgment in favor of the plaintiffs in an action of assumpsit against the Major and City Council of Baltimore, for work done and materials furnished1 in the erection of a set of concrete steps in Patterson Park, and the only exception in the record relates to tho ruling of the lower Court on the prayers. The evidence shows that the plaintiffs, on the 5th day of April, 1909, entered into a contract under seal with the Board of Park Commissioners “for the grading of slopes and erection of one set of concrete stops in Patterson Park in strict compliance with the terms and specifications of the Board of Park Commissioners, which specifications are hereby attached, and with the plans of the Park Department, both of which are distinctly and expressly understood to be part of this contract as fully as if embodied herein, at and for the following prices, viz: 1. Stripping and replacing sod at five cents per square yard. 2.

Excavating and replacing tap soil at twenty-five cents per cubic yard. 3. Excavation of sub-soil material at thirty-five cents per cubic yard. 4. Stone or gravel for frost base at one dollar and fifty-five cents per cubic yard. 5. Concerté for steps, including top dressing, at twelve dollars per cubic yard'.” The specifications provide for the stripping and replacing of sod, the excavation of top soil and other material, the construction of the frost base and drain holes, tlm mixing of the cement, sand and stone for the steps, and the mixing of the sand and cement for the top dressing of the steps and carriages, and also contain, among others, the following provisions : ³³⁸ “The Contractor further agrees that he will commence the work herein contracted for within ten days of the award of the contract if the Engineer so directs, and that the work shall he completed within twenty (20) working days after the starting of the work.” “The Contractor shall give his constant personal attention to the work when it is in progress, or he shall place it in charge of a competent and reliable foreman, who will have the author ity to act for the Contractor, and who shall he acceptable ta the Engineer.

There shall he a set of plans and specification? on the work while it is in progress.” “All materials and workmanship shall he subject at all times to inspection and acceptance or rejection by the Engineer.” According to the testimony of Julius A. Kinlein, one of the plaintiffs, he received notice from the park engineer on the 23rd of April, 1909, and the work on the steps was commenced on the 24th of April and finished on the 28th of May, 1909. The Park Board furnished him an estimate of the work done on the steps, by which it appeared that the amount due him was $338.11. Between the 24th of April and the 28th of May “there were twenty-five good working days, exclusive of Sundays and rainy days.” He superintended the work, and the park engineer, Mr. Gross, and an inspector, who had charge of the work for the City, were there every day. The work was completed according to the plans and specifications, and turned over to the Park Board on the 28th of May, 1909, and the steps were used by the public imtil October following.

During the erection of the steps the representative of the engineer was always present, and no complaint was ever made to plaintiffs about the work or the materials. After the mortar for the top dressing bad been mixed according to the specifications, and two of the steps, in the language of the witness, bad been “topped,” the representative of the engineer in charge of tbs work called np the engineer and told him that be thought the “topping” was very dark, and that witness changed the ³³⁹ color and replaced the top dressing which had already been done without making any extra charge for it. He says further that the engineer accepted the work, and that Mr. Manning, the Superintendent of Parks, told him in Mr. Mongol’s office, and in the presence of Mr. Gross, that the money due him on the steps would be held up until two other contracts he had were completed. On cross-examination the witness stated that he received from Mr. Gross a letter dated June 9th, 1909, stating that the plaintiff had “already overrun the time limit set forth in the specifications on Spring Water line in Druid Hill Park, also on concrete steps in Patterson Park,” and that if they did not proceed to have the contract on the steps completed by the 12th of June, he would take action to have the bonding company complete the work, and that after receiving that letter, and after explaining the matter to the bonding company, he made an engagement with Mr. Gross to meet him at the steps; that the engineer did not keep the engagement, hut sent, as his representative, Mr. Quickbaum; that ho asked Mr. Quickbaum what work he wanted done on the steps, and that he replied that he did not know, that Mr. Gross said they needed general repairs, hut that the steps were finished and he could not see anything wrong with them, and that he then told Mr. Quickbaum that if he would tell him what he wanted done he would do it. lie also states that he signed the following authority to the Board of Park Commissioners: “I, Julius A. Kinlein, on behalf and for J. A. Kinleiu and Company, hereby authorize the Board of Park Commissioners of Baltimore to complete and finish my contracts with the Board of Park Commissioners under date of April 5th, 1909, for the construction of a concrete steps in Patterson Park, and under date of April 5th, 3909, for the construction of a pipe line and small reservoir in Druid Hill Park in accordance with the terms of my contract and bonds hereinbefore mentioned, by the quickest method possible, either with their own force and men or by contracting with the Filbert Paving and Con ³⁴⁰ structioh Company, or any other contractor which the Board of Park Commissioners may elect, and I hereby authorize the Board of Park Commissioners to award the contract for the completion of the work without competitive bids, and to apply such funds as now due me- and in the hands of the Board of Park Commissioners to paying said contractor for completion and to use all materials which I may have on the jobs.

J. A. Kinlein & Co., Julius A. Kinleot. (Seal)” July 8/09. In explanation for this authority to the Park Commissioners, he says that in so far as it relates to the contract for the concrete steps, it had reference to laying the sod; that after completing the steps he was required by his contract to re-lay the sod on each side ; that he replaced the sod several times to please Mr. Gross, and that when he finally replaced it the weather was very diy and hot and some of the sod died, and he could not then purchase other sod; that that was the only reason he signed the agreement, and that nothing was said at the time about the steps. According to the testimony of J. Harry Gross, the Park Engineer, George A. Schaeffer, who was employed as inspector of the work on the steps; William S. Manning, “superintendent of the Board of Park Commissioners,” and Samuel W. Filbert, the steps were not completed within the time specified by the contract, or in accordance with the specifications.

They were not accepted by the engineer, who made frequent complaints to the plaintiffs during the progress of the work, and that plaintiffs were repeatedly told that the work was not accepted and that the steps would have to be torn out. In pursuance of the authority signed by the plaintiff on the 8th of July, 1909, the Board of Park Commissioners entered into a contract with the Filbert Paving .and Construction Company for the completion of the work mentioned in the contract with the plaintiffs of April 5th, 1909. The steps erected by the plaintiffs were torn out in ³⁴¹ the fall of 1909, and the total costs of the completion, by the Filbert Paving and Construction Company, of plaintiff’s contract was $295.26, which was paid by the Mayor and City Council of Baltimore. At the conclusion of the testimony the plaintiffs offered one prayer, which was granted by the Court below, and the defendant offered ten, all of which were rejected except the tenth.

By plaintiff’s prayer the jury were instructed “that if they shall find from the evidence in this ease that the plaintiffs and the defendant entered into the contract offered in evidence and dated April 5th, 1909, and that pursuant to said contract the plaintiffs furnished all the materials and did all the work necessary for the construction of one set of concrete steps and all grading and sloping at Patterson Park, and set out in the plans and specifications of the Park Department, then the plaintiffs are entitled to a verdict in this case, even though the work and materials may not have been in strict compliance with the said plans and specifications; provided, however, the said materials as furnished and the work as done were accepted by the defendant if they so find. And in awarding damages they shall award the plaintiff such sum as the jury shall find in a fair value for such work and materials, measured by the contract price, less any damage they shall find the defendant suffered by the default of the plaintiffs; if they should find any default.” And the defendant’s tenth