McNulty v. Keyser Office Building Co.

Pearce, J., delivered the opinion of the Court. This is an action of assumpsit brought by the appellant against the appellee to recover the sum of $1,200 for plastering certain beams in the office building of the defendant. The declaration contained only the common counts, to which the general issue was pleaded and the only exception taken in the case was to the granting of a prayer offered by the defendant, at the close of the plaintiff’s testimony, instructing the jury ⁶³⁹ “that no legally sufficient evidence had been offered to show that Wyatt and Nolting, the architects, were authorized to bind the defendant by any contract or agreement with the plaintiff whereby the defendant was to be, or become liable to the plaintiff for the alleged extra Work on the Keyser Building for which this suit is brought, or that any such alleged contract or agreement, if made by said architects was subsequently ratified by the defendant, and that therefore their verdict must be for the defendant.” The defendant is a corporation owning a lot in the city of Baltimore, and on March 9th, 1905, entered into a written contract with the Broderick and Wind Engineering and Construction Company, a corporation, for the erection by said last named company of an office building upon said lot, at a cost of $288,000, subject to additions and deductions as provided in said contract. This contract is known among owners and builders as-“The Uniform Contract,” and is the form adopted and recommended for general use by the American Institute of Architects, and the National Association of Builders, and it bears that information at the head of the contract.

Art. 1 of this contract provides that “the contractor shall and will provide all the materials and perform all the luorle for the erection and completion of said building, as shown on the drawings and described in the specifications prepared by Wyatt & Nolting, architects,” and made part of said contract. Aid. 2 provides “that the work included in this contract is to be done under the directions of the said architects.” Art. 3 provides that “no alterations shall be made in the work except upon written order of the architects; the amount to be paid by the owner, or allowed by the contractor, by virtue of such alterations, to be stated in said order.” Art. 8 provides “that owner agrees to provide all labor and materials essential to the conduct- of this work, not in-' eluded in this contract, in such manner as not to delay its progress, and in the event of failure to do so, thereby causing ⁶⁴⁰ loss to the contractor, agrees that he will reimburse the contractor for such loss.” It is unnecessary for the purposes of this case to refer here to any of the other provisions of that contract. The Broderick and Wind Company, the general contractor, on April 5, 1905, entered into a written contract, with the appellant, McNulty Brothers, of New York City, designated in said contract as sub-contractor, by which the appellant became bound “to provide all the materials and perform all the work mentioned in the sjoecifications and drawings prepared by the said architects, and identified by the signatures of the parties hereto for the installation and construction of the plastering” in said building, and an exact duplicate of all the specifications relating to said plastering, as annexed to the contract between the Broderick and Wind Co. was also annexed to, and made a part of, said sub-contract. Paragraph 3 of this sub-contract provides that “it is further understood and agreed that the sub-contractor shall not, under any circumstances, be entitled to allowance for any extra work, unless the sub-contractor shall produce a written order to do such extra work, signed by a properly authorized ofScer or agent on behalf of the contractor.” Paragraph 15 provides that “no alterations shall be made in the work shown or described by the drawings and specifications, except upon a written order of the contractor, and when so made, the value of the work added or omitted shall be computed and the amount so ascertained shall be added to, or deducted from the contract price.” This sub-contract contains many of the exact provisions of the general contract, differing only in so far as is necessary to conform to the difference of parties and the times of performance.

The only witnesses in the case were James E. Broderick, a representative of the Broderick-Wind Co. and Patrick Mc-Nulty. During the progress of the work a question arose as to whether McNulty’s contract required him to plaster certain ⁶⁴¹ beams projecting below tbe ceiling line. It appears from Broderick’s testimony that the drawings did not show' the projection of these beams, but it also appears that he made no charge for them as extra work and material against the defendant, and received no allowance for them. The architects required these beams to be plastered as within the terms of the contract, and at their request Broderick obtained from McNulty Bros, an estimate of the cost of plastering the beams, viz, $1,200, being the actual cost of the work without profit.

The Broderick and Wind Co. refused to allow Mc-Nulty Bros, anything extra for that work, because as Broderick testified': “It was not in our original contract;’it was clearly an extra and it was up to McNulty to take it up with the architects to secure an allowance for that work;” and that he informed the architects of the refusal.to allow Mc-Nulty anything on his contract. Both Broderick and Mc-Nulty testified that the lattei; refused to plaster these beams until he knew who was to pay for the work, and that the matter was in controversy for sometime until an interview was had between Broderick and himself and Mr. Nolting, 'one of the architects, “at which Mr. Nolting said the work would have to be done, no matter who did it; that the building could' not be completed unless it was done; that McNulty should go ahead and finish it up, and that if it was extra, Mr. Nolting' would see he was properly paid for the work.” This was; Broderick’s language. McNulty’s language was that “he told Mr. Nolting he did not propose to go on with it until he knew who was going to pay for it, and that Nolting said the work had to go on, and if, as I stated the plans did show the beams projecting below the ceiling, to go ahead with the work and he would see we were paid for it.” Broderick further testified that at the conclusion of this interview he asked Mr. Nolting to verify what had been agreed to in writing so that he would have an oi'dej’ for it as a matter of record, and he agreed to this, but one excuse after another was made for not doing so and it went along that way until Mr. Nolting went away on his vacation, and while he ⁶⁴² was away the work was finished and the order was never written. An itemized bill rendered by the Broderick and Wind Co. to the defendant was pnt in evidence in which this item of $1,200 for plastering these beams was contained, bnt the bill "shows this item was stricken ont and Broderick admits this was done by the architects, and that the bill, after this item eliminated, was marked “approved” on June 29, 1906, by the Broderick-Wind Co. and by the "architects.

An itemized bill rendered by McKnlty Bros, to the Broderick and Wind Co. was also put in evidence containing this item of $1,200, and McISTulty testified that he had no account against the defendant and that this item was charged on his books to the Broderick and Wind Co. and not to the defendant. . It was also shown that MoEulty in July, 1908, issued an attachment against Broderick and Wind Co. for a balance ■claimed to be due, including this -$1,200, but that it was afterwards withdrawn, and a settlement was made between ;them, excluding this item, which was expressly reserved by ithe plaintiff as against this defendant. The question of law presented by the prayer granted in this case, is whether under this contract, and upon the facts in this case, the architects had the power to bind the defendant by the alleged agreement with the sub-contractor to pay ,for this alleged extra work. This question ought not to be, and we do not think is, difficult of solution.

The principle upon, which it must be decided is clearly •stated in 6 Cyc. 29, where it is said: “The mere fact that a person is employed as architect, does not constitute such person a general agent of his employer, 1vis powers as agent be 'ing limited by the contract entered into between them. Thus unless specially authorized, he is not entitled to change, alter or modify the contract entered into by the builder and his employer, nor has he any authority to bind the owner by ⁶⁴³ contracts for any work done or materials furnished for the structures concerning which he is employed.” And in 2 Amer. & Eng. Enc., page 821, 2nd Edition, it is said: “He cannot employ another to do work which the contractor has undertaken, or substitute a sub-contractor for the principal contractor, either in the performance of the work, or the payment therefor.” In accord with this statement of the law is the case of Baltimore Cemetery Co. v. Coburn, 1 Md. 202. Cobum had agreed to erect a gateway for the Cemetery Co. at the entrance of the cemetery, and the written contract between them provided that “should any alteration be contemplated from the design it may be done, provided the parties beforehand agree upon the price and endorse it upon the contract, and unless such agreement be also entered, it is to be taken to be an agreement to make the alteration without any change in price of the original contract.” The architect directed two windows to be placed in the gateway which he deemed necessary to its symmetry and beauty in consequence of the two chimneys being placed in a position different from that contemplated by the original plan, and Coburn sued