Merritt v. Peninsular Construction Co.

Page, J., delivered the opinion of the Court. This suit was instituted by the appellant to recover from the appellee the value of work, materials and labor, under a written contract for the construction of the Queen Anne’s Railroad, and also for extra work and materials. The narr. contains only the common counts in assumpsit, and no bill of particulars was filed. The defenses set up by the pleas, are non assumpsit, and that the plaintiff entered into a written contract with the defendant for the building of the railroad and the plaintiff did not complete the work within the time specified in the contract, etc., whereby the defendant suffered great loss, over and above all claims of the plaintiff, for which the defendant claimed judgment.

Five exceptions to the admissibility of evidence were taken by the plaintiff, and all the evidence, not stricken out at the time it was tendered, was admitted subject to objection. At the end of the examination of the witnesses, the defendant offered eight motions to exclude different portions of the evidence, three of which, together with an instruction taking the case from the jury, were granted by the Court. Instead of considering separately, the several motions of the defendant and the action of the Court thereon, we will take up the whole case as it is presented in the record, and determine in that manner the legal principles ’applicable to the points involved. - In the summer of 1895, the appellant, in an interview with the general manager of the appellee, was shown “the plans and profiles but not the estimates of quantities of work” of the proposed railroad. Subsequently the appellant, having gone over the route, made two proposals for the building of the road; one “ submitting prices per cubic yard per foot, board measure, and so much for track laying ; ” the other ⁴⁶² “ for building the road at so much per mile.” The appellee accepted the latter, and on the I ith day of September 1895, entered into the written contract, which appears without abbreviation in the record.

It seems to be a carefully constructed instrument, in which the respective rights and obligations of the parties are minutely prescribed. It is too voluminous to be inserted in full in this place, but we will cite such portions of it, as may be required for the purpose we have now in view. By its first item, the appellant, agrees “ to construct, build, complete and equip, ready for operation, the first section of the line of railway, known as the Queen Anne’s Railroad, from the sea end of the pier or wharf at Queenstown, to the west side of the Choptank river at or near Denton * * estimated at about twenty miles, including the wharf at Queenstown, and including in such construction all the grading and masonry, track-laying and other work, and the furnishing of the rails, ties and all other material required for a single-track railroad, ready for operation on said section, as laid off, surveyed and designated by the chief engineer, etc., including more particularly all work required to be done by the company on said section in strict accordance with the annexed specifications, which are signed by the parties hereto, and are made a part of this agreement, and are hereby declared and accepted as an essential part of the same, etc., all of said work was to be done under the direction and inspection of the engineers of the Queen Anne’s Railway- Company appointed to superintend the same,” and to the “ full satisfaction and acceptance” of its chief engineer in “ strict conformity with such lines, levels, stakes, profiles, plans, maps, drawings, specifications and instructions as shall from time to time be given by the chief engineer as herein provided for the direction and guidance of the contractor.” If replacement or repairs became necessary before the final acceptance of the whole work, by reason of defective material or workmanship, it was to be done at the expense of the contractor. The entire work was to be commenced within six days after the nth of ⁴⁶³ September, 1895, and completed within six months, unless it was delayed by unavoidable strikes or legal proceedings ; and this time was to be considered as of the essence of the agreement.

The “ whole and full consideration,” “for the final, total and satisfactory construction,” was $6,750.00 per mile. The wharf at Queenstown, to be charged for, “as forming so much linear part or portion” of the work, was to be finished first, and ninety per cent of its cost, or if it cost to exceed $10,000, then not more than $9,000 was to be paid on its completion, as part of the whole consideration to become due under the contract. The balance of the consideration was then to be divided equally per mile, and when each five-mile section was completed, ninety per cent of the money due for that section was to be paid, it being intended that the ten per cent thus retained should stand as security for loss, &c, and not be paid over until the completion and acceptance of the whole work. The specifications annexed, specifically made apart of the agreement, contain directions for the details of the work, yet, from the nature of the case, there were many things that could not be minutely specified, but yet were contemplated should be done by the contractor, to complete the work according to the true spirit and intent of the general plans, and in such cases the specifications provide the work shall be done as the engineer may direct.

To protect the company from charges on account of extra work, it was provided, that “ no claim for extra work shall be allowed, unless this work shall have been done in pursuance of a written order from the engineer, and unless the claim be presented at the first settlement after the work was executed.” One of the chief contentions of the appellant grows out of the proper construction of the clause just cited. There is no evidence that the work for which he claims an extra allowance was done in pursuance of a written order from the engineer, but he insists that he has a legal right to recover for it in this suit because of an alleged oral agreement between himself and the company, made before ⁴⁶⁴ the signing of the contract and immediately thereafter by the president, to the effect “ that if any change was made in the plans of the work, which entailed work in excess of the work called for by the contract,” such excess should be paid for by the company. Upon the plaintiff’s offer to prove such an oral contract, the Court ruled that to do so would be to alter the written contract and the evidence was therefore inadmissible. The offer was in effect to prove that contemporaneously with the making of the written contract, (that is, “ before and immediately after,”) there was in respect to the extra work a verbal contract, other than that contained in the written, paper.

Whether that was competent for him to do must depend upon the proper answer to be made to the question, was the verbal contract an independent agreement about which the written contract is silent? That question in this case is purely one of law, for the reason that its determination depends entirely upon the proper construction of the written agreement. Did the parties, according to a fair and proper construction of what they reduced to writing, intend that all extra work of every kind should not become the subject of additional charge, unless the same was ordered in writing by the engineer, and the claim therefor presented at the first settlement thereafter? If the Court should so hold, then, the oral agreement is not collateral, but is a modification of the written contract, and cannot be proved without violating the well-, established rule of evidence.

The question in Bonaparte's case, 73 Md. 199 , was whether, when the contract between the parties was partly in writing and partly by parol, the jury were at' liberty, from all the evidence in the case, written as well as oral, to find what the contract actually was; here the question is, do the provisions of the written contract include the subject-matter of the oral agreement ? for if they do, the written paper is conclusive, and parol evidence inconsistent therewith cannot be offered. Fusting v. Sullivan. 41 Md. 169 . What then is the proper construction of this clause ? The ⁴⁶⁵ case of Abbott v. Gatch, 13 Md. 329 , is conclusive on this point.

There was in that case a similar provision in a contract to put up a mill. The Court said, “ the object of such a provision in building contracts is certainty as to the terms on which the work is to be done.” The extra work for which compensation was claimed was in making certain alterations and putting in portions of the mill, not embraced by the terms of the contract. One of the questions involved was the right of the plaintiff to claim therefor additional compensation. It was held that the contractor “ was-under no obligation to receive suggestions from Abbott on the contrary, if he deemed them unsuitable or impracticable, or likely to cause increased expense, he should have resorted to the contract, as containing all that he was required to perform, and insisted on having the additional work brought within its terms as well for his own protectection, as to prevent misapprehension on the other side. * * We take the true construction to be, that there was to be no charge for extra work, that is, for any work beyond that stated in the contract, no matter what it might be, whether alterations in the plan or mode of doing the work or additions or improvements in and about the completion of the mill, unless* reduced to writing and attached.” The-same doctrine was affirmed in the later case of O'Brien v. Fowler, 67 Md. 565 , where the claim was for “ work and materials not embraced in said written contract,” which, contained a similar provision with reference to extra work..

The Court said “ without the written order and approval, as; provided by the contract, any extra work that may have-been done was not embraced by such contract, * * and to entitle the plaintiff to claim under the contract, he must claim in conformity to the terms and not otherwise. The very object of the stipulation in the contract was to exclude such claim for extra work, except upon the condition prescribed.” That was an action of covenant, and the Court proceeded to say, that if the extra work and materials were furnished by “ the order and direction of the defendants, ⁴⁶⁶ and they expressly promised to pay for the same,” and “that the written orders were not received for such work and materials by reason of inadvertence and neglect, and that the defendants waived such written orders and approval thereof,” then the plaintiff