McHenry v. Marr

Bowie, J., delivered the opinion of the Court. The appellees, as co-partners, claiming possession of a certain messuage and premises in the city of Baltimore, known as the “ Monumental Bowling Alley,” with the appurtenances, sued the appellant in the Circuit Court for Harford County, and by their narr. averred, that being possessed of said messuage, in which before and at the time of the committing of the grievances thereinafter alleged, they carried on a remunerative business, as proprietors and managers of the bowling alley and public bar, then and there kept open for the patronage of the public ; whilst being so occupied, the defendant requested permission of plaintiffs to enter upon said premises and secure the east wall of the bowling alley building, and do other repairs, etc., in and about said building, then and there being, viz : on or about the 14th of April, 1870, which permission the plaintiffs gave the defendant, with the proviso, that he should exercise due care, and make said repairs and alterations in a substantial and skilful manner. The plaintiffs averred that the defendant entered upon the premises and made the repairs and alterations in a wrongful, negligent and unikilful manner, and' omitted to use due care and skill in the construction of the new wall, and in fact, did construct the wall, or a portion thereof, out of improper and insufficient materials, so that about the 3d of June, 1870, the new wall constructed by the defendant, gave way, and fell down, and caused to fall with it, a large portion of said bowling alley building, so as aforesaid occupied and used by the plaintiffs; by reason of which, the plaintiffs were necessarily and substantially evicted from said messuage and buildings, and were prevented and debarred from realizing the gains and profits, which they would otherwise have made, amounting to five thousand dollars. And the plaintiffs further averred, that by reason of the acts and negligence-of the defendant, their entire ⁵²³ business was broken up and destroyed, and their custom and patronage prevented, and the use and occupation of the messuage and buildings made impossible To which narr. the defendant pleaded not guilty and issue was joined thereon.

At the trial of the cause, the appellees, plaintiffs below, offered evidence to prove, they were tenants of the defendant, (the appellant,) from the 1st of April, 1869, and proved and offered in evidence an agreement executed by the defendant, purporting to be made on the 1st of April, 1869, by the appellant of the first part, and the appellees of the second, whereby the appellant, leased to the appellees, the Monumental Bowling Alley, together with the stable in the rear thereof, from the 1st of April, 1869, to the 1st of April, 1871, at and for the yearly rent of $3000, payable in equal monthly instalments, and the appellees covenanted that they would promptly pay said rent, and that they would at their own expense heep said property in repair, etc., and that at the expiration of said term, they would surrender said premises, with all repairs, and improvements, that may have been made, and all advantages secured therefor, in good order, unavoidable wear and tear excepted. This instrument, was signed Ramsey McHenry [seal] per Thos. Hill, but not signed by the appellees. The appellees further offered evidence to prove the premises were in good repair in January, 1870, when Robert Rennert, the proprietor of an adjoining lot on the east side, gave notice to the defendant, of his intention to make certain improvements and excavations on his property, and on or about the 15th of March, 1870, commenced said excavations, etc., and took down his adjoining building, which was attached to the back building of the demised premises ; that on the 14th of April, 1870, Rennert, had removed his adjoining building, and his work had so far progressed, that the east wall of the back ⁵²⁴ building binding on Rennert’s, must necessarily have fallen down, when Rennert’s improvements were completed, if nothing were done to prevent it, and up to that time, plaintiffs had done nothing to secure said wall or prevent its falling.

The appellees further offered to prove, that the appellant by his agent Thos. Hill, applied to them on the 14th of April, 1870, for permission to use about ten feet along the east wall of the bowling saloon, for the purpose of securing at once, the east wall of the bowling alley building and proposed to make an abatement of $100 per month from the rent, until the part was restored — which proposition being declined, the appellant by said Hill his agent, offered to abate all the rent, from that time, until the wall proposed to be built, should be completed, and the premises restored to plaintiffs in good condition, and the appellees gave him permission to enter and occupy so much of said back building, as was covered by two of the eight alleys, into which it was divided. The appellees further proved, that a wall was erected on said east side of the back building, by men employed by the appellant; that said wall was negligently built, and fell down, on the 3rd of June following ; that they ceased to do business for the residue of the term, and could not have successfully carried it on, and gave notice to their sub-tenants, not to pay any more rent. That the wall was not repaired or rebuilt until after their term had expired.

They also offered evidence of written notice from appellant to them, dated June 6, 1870, that under the terms of their agreement with him, they were held responsible for the repair of the property, and incidental expensesj and requiring them to take steps at once to secure the property. On cross-examination of one of the plaintiffs, it was proved that the appellant (the defendant) was a farmer, ⁵²⁵ residing in Harford County, and that Hill, was a real estate broker, and neither of them, had any skill or experience in building. The defendant, to support the issue on his part, proved by said Hill, that he was a real estate broker, in Baltimore City, and for many years had charge of the demised premises, as agent for defendant, and was acquainted with the value of leasehold property, in said city, and propose to ask the said witness, what in his judgment, was the value, on the 14th of April, 1870, of the residue of plaintiffs’ leasehold interest in the premises, taking the property as it then was, before he had undertaken to build the wall or obtained permission to do so, assuming that under the lease the plaintiffs (the appellees) were then liable for and bound to make the repairs then necessary to be made — to which the appellees objected, and the Court sustained the same, and refused to permit the witness to answer, to which refusal the appellant excepted. The object for which.the proposed testimony was offered was not indicated by the appellant, and if it had any relevancy, it must have been as to the quantum of damages.

The appellant contends that the witness as an ordinary person, was competent to testify as to the value of the residue of the term ; but as an expert, he was entitled to give his opinion of its value, as an element in the estimation of damages. The appellees deny that the value of the residue of the term entered at all into the consideration of the amount of loss which resulted from the destruction of' their business ; that the witness possessed no peculiar qualification which authorized him to speak of the profits or losses which they would sustain from an interruption of their pursuits, and even if the witness was competent to speak of the subject-matter inquired of, the subject-matter of the question was not the test of damages. The latter view of the question we think is the correct one. ⁵²⁶ The ground of action was the negligent or unskilful discharge of a commission which the appellant had un•dertaken to perform. The measure of damages was the loss sustained by the appellees in consequence of its <ponperformance through want of skill or care.

The value ’of the term, under pre-existing contracts and relations between the parties was irrelevant and immaterial to the issue. The assumption of the appellant to secure and rebuild the wall, whatever might have been the obligations of the appellees in that respect under the lease previously, operated as a modification of the appellees’ liability pro tanto, and the testimony offered by the appellant upon the presumption of their continuing liability, would have been, in our judgment, based upon an erroneous theory. In a subsequent part of this opinion our reasons for this conclusion will be more fully developed. The second bill of exceptions is taken to the refusal of the Court to allow the defendant to prove that House, the person who rebuilt the wall .for defendant, had the character and reputation in Baltimore of being an experienced and skilful and reliable mechanic and master builder.

The testimony offered could only have been admitted upon the theory, that the defendant was not responsible if the contractor employed by him to do the loorh was shilfnl. But this position is untenable. In the case of Deford vs. The State, use of Keyser, 30 Md., 185 , the defendant offered a prayer asserting this doctrine, but this Court, in their opinion, (p. 209,) referring to that prayer, say: “ The tenth prayer was properly refused, because it proceeds upon the theory that the defendants were not responsible for the negligence of their agents and servants, if they were skilful and competent workmen, unless their negligence, was committed in consequence of some special direction given or omitted ⁵²⁷ to be given by defendants.” This can be maintained upon no principle applicable to this case. The suit in this case differs from the case cited in that, it is not an action for damages resulting from an accidental injury, occurring in the course of work done by the employes of sub-contractors.

But the action is for damages resulting from the malconstruction of the wall which the defendant had undertaken to build ; in which case the doctrine, “ qui facit per alium facet per se” applies. This Court, in the case of Deford, further said: “And the fact that the wall was erected by others under contract, and to whom he did not bear the relation of master, will not excuse him ; for, as was said by Lord Campbell, in Ellis vs. The Sheffield Gas Company, 2 E. & B., 767, it is a proposition absolutely untenable that in no case can a man be responsible for the act of a person with whom he has made a contract. If the contractor does the thing which he is employed to do the employer is responsible for that thing as if he did it himself.” Numerous other authorities are cited establishing the same position, 30 Md., 204, 205 . The appellees insist that the third bill of exceptions, in which the prayers of both plaintiffs and defendant and the action of the Court thereon are embodied, presents nothing which can be received in this appeal, except the refusal of the Court to grant the fourth prayer of the appellant as amended, and giving the instruction in lieu thereof.

It appears to us that such a construction of this bill of exceptions, would be very rigid and contracted, and inconsistent with its whole frame and object. The third bill of exceptions, after a brief statement of some parol evidence, sets out in “ hcec verba,” the plaintiffs’ first and second prayers, and states the defendant offered the following seven prayers, which are inserted at ⁵²⁸ length ; it then states, “the Court granted the plaintiffs’ first prayer with the following modification, (which is inserted,) and refused to grant their second prayer. Immediately after which follows this statement: “The Court granted the defendant’s first and fifth prayers, (the fifth being conceded by plaintiffs,) and also granted his second prayer, after modifying it by striking out the word “gi’oss” before the word “negligence,” bixt refused to grant it as offered, and refused to grant the defendant’s third, fourth, sixth and seventh prayers.” ' “To which granting of plaintiffs’ first prayer as modified and refusal to grant defendant’s third, fourth, sixth and seventh, and his second as offered, the defendant excepted. The defendant then again offered his fourth prayer, with the following