Merritt Building & Supply Co. v. Shaulis

Marbury, J., delivered the opinion of the Court. The appellant, Merritt Building and Supply Co., Inc. (Merritt), and the appellees, William F. Shaulis and Emily M. Shaulis, his wife, entered into a written contract on May 16, 1966, whereby Merritt agreed to make certain improvements on ¹³⁴ appellees’ behalf to- their, home in Arnold, Ann.e Arundel County, Maryland. All work was “to.be-done to. Mr.-& Mrs. Shaulis’ satisfactión.” The.appellees signéd a promissory note and agreed-to pay-the' contract price of $3,100.00 in 60. monthly installments, plus interest at 5Y^°fo per annum,,payment to commence 60 days after ..the completion of the home improvements. .Appellant-subcontracted the. work to a Mr. Joseph .Gibson who performed the items listed'in the contract, such as putting on a.new.roof, and installing aluminum siding.

Gibson returned on-four or-five occasions to make-corrections-that the appellees had requested. Not having received any payment, by an amended declaration,' the appellant brought suit against the appellees- on their contract and promissory, note. The appellees’ defense was that the work had been improperly performed and did not meet their satisfaction as required by the contract. On November 14, 1967, at triál, the lower court, sitting with-’ out a jury, heard testimony pertaining to. the instant case.

During the course, of this hearing.it became apparent that some of the, work had not been completed properly. At the request of both parties the lower court inspected the appellees’ premises immediately, after the hearing. On November 16, 1967, the appellant filed a petition to transfer the action, from law to-equity, and made a tender to complete any and all unfinished work or any and all work that was not properly performed. In fact, the appellant offered to bring in another qualified contractor who would be approved by the court and/or the appellees in order to complete or correct-the-work!

After the hearing and before judgment, the lower-court allowed the appellant to amend its declaration, to include the.,common counts. The lower court in an opinion,and order'dated November 28, 1967, denied the appellant’s petition and.gave judgment for defendants-appellees for costs. From that order Merritt has appealed. On appeal, Merritt makes four contentions: (1) that the decision of the lower court was against the weight of the law and evidencé; (2) that the lower court’s decision constituted a forfeiture ánd á penáltyupon the appellant; (3) that the lower court’s rulings on the - testimony and evidence constituted prejudicial error; and' (4) that the lower 'court abused its discretion in refusing to transfer the case from law' to1 equity! ¹³⁵ In regard to appellant’s first contention, the contract between the parties provided that the work was to be performed to Mr. and Mrs. Shaulis’ satisfaction.

The lower court found that the appellant’s performance would not even meet an “objective reasonable man” test. The trial judge stated in his opinion that on his personal inspection of the premises he observed that in several areas the aluminum siding had been installed without starter strips and that it was possible to see the chimney flashing from the ground. The trial court observed: “Elsewhere on the roof the shingles humped and drooped, especially at the edges where rake boards should have been used. . . . Defective roof sheathing was visible under the overhang of the eaves.” In addition there was ample testimony by the appellees’ witnesses of improper performance so that we cannot say that the lower court erred in holding that the appellant was not entitled to recover under its express contract.

However, we do agree with the