McDonald v. King

Burke, J., delivered the opinion of the Court. This suit was brought in the Baltimore City Court under the Speedy Judgment Act. The case was removed to the Court of Common Pleas, where it was tried. The jury rendered a verdict for the defendants, and from the judgment entered upon the verdict the plaintiff has brought this appeal.

There aye no exceptions to testimony, or.to the rulings upon prayers. The appeal presents for review the action of the Court in striking; out a judgment in favor of the plaintiff for $125.45 and costs entered on the first day of October, 1912. The declaration contained the common counts, and ⁵⁹¹ one special count. The special count alleged that the plaintiff and defendants entered into an agreement on or about the 9th day of September, 1909, whereby the defendants contracted and agreed with the plaintiff to install in a workmanlike manner, a steam heating plant in a part of the building and premises situated at the northeast corner of Hillen and Front streets in the City of Baltimore at and for the sum of two hundred dollars; that the defendants did nor. install a steam heating plant in said premises, hut instead of so doing the defendants installed, without the knowledge or consent of the plaintiff, a plant which was in part a steam heating plant and in part a hot water heating plant, that is to say, the defendants installed the pipes and radiators suitable for a steam heating plant, and a boiler or heater for a hot water heating system; that the plaintiff, believing that a steam heating plant had been installed, as agreed to he done by the defendants, paid the defendants the sum of two hundred dollars; that for a period of about one year the plaintiff remained in the belief that the plant was a steam heating plant, hut immediately upon ascertaining that it was not a steam heating plant, hut was in part a steam heating plant and in part a hot water heating system, he notified the defendants to make the -plant conform to such a plant as had been agreed upon between him and the defendants, which the defendants failed to do; that the plaintiff then notified the defendants that unless they should proceed to carry out their contract with the plaintiff, he would have the work done at the cost and expense of the defendants; that the defendants failed to perform the contract, and the plaintiff then had the plant changed and altered in such a manner and to such an extent as to make it conform to such a plant as the defendants had agreed to furnish to the plaintiff; tnar the plaintiff notified the defendants that he had said work done, and that he had paid the costs thereof to the person who did the same, and demanded payment of the cost thereof by the defendants to him; that the defendants failed and refused to pay the same. ⁵⁹² The account filed with the narr. was as follows: “Mess.

Charles T. King, George F. Lang and John G. Beck, co-partners, trading as Charles T. King & Company. To Thomas J. McDonald, Dr., To these amounts paid to Joseph C. Mitchell: Mar. 22nd.—For time of plumber and helper taking down old boiler and removing bursted section.........$ 5.00 Mar. 27th.—One No. 5-15-7 Steam Boiler.... 96.00 Mar. 27th.—2-2 in. sockets, 24 cts., 1-1 in. union, 30 cts., 2-1 in. nipples, 20 cts....................... .74 Mar. 27th.—1-1 in. Ell., 12 cts., 4 3x2 bushings, $1, 2-1 in. bushings, 40 cts.. 1.52 Time Henry and John (16 hrs.) 2 days ea. at $7.50 per day..... 15.00 To "Wallace & Gails bill for covering boiler with asbestos....... 4.82 $123.13 On June 26, 1912, a judgment by default was entered for want of a plea and affidavit. Following- the entry of this judgment certain motions and orders were filed which need not be considered, as they do not affect the question to be decided.

On October 2, 1912—the day following the entry of the final judgment—the defendants filed a motion, under oath, to strike out the judgment and assigned in support thereof a number of reasons. The third reason is hereby transcribed: “Because the voucher or writing filed with the declaration is not sufficiently definite, and does not show on its face a prima facie case of indebtedness from the defendants to the plaintiff.” On the tenth day of December, 1912, the Court struck out the judgment, and on the same