Meyer v. Frenkil

³⁸ Burke, J., delivered the opinion of the Court. This is the defendant’s appeal from a judgment rendered against him in the Circuit Court for Charles County. The record contains two exceptions; hut the first was abandoned in this Court at the hearing. The second exception brings tip for review the propriety of the action of the Court in granting the plaintiff’s first and second prayers, and' in refusing the defendant’s fourth prayer, which sought to withdraw the case from the- consideration of the jury.

The suit was brought to recover a balance of- $898.95 for work done and materials furnished by the plaintiff in the repair and improvement of a property in the City of Baltimore owned by the defendant. By an account filed in the case by the plaintiff he claims to have furnished materials and fixtures for the property to the amount of $723.95, and to have done work and labor upon the premises to the amount of $650.00, thus making the total sum of $1,373.95 for work and materials done and furnished in connection with the improvements of the property. Upon this sum the account shows the following credits, viz: Credits. 1904— December 15th, by check.............. $120.00 “ certain allowances... 5.00 1905— January 2nd, “ cash............... 100.00 “ 6th, “ “ ..............'. 100.00 March 3rd, “ draft.............. 150.00 $475.00 The declaration is in assumpsit, and contains the common counts only. There were no special exceptions filed to the prayers, and, therefore, the only question for us to decide-is whether, upon the evidence appearing in the record, there is reversible error in the action of the Court upon the prayers.

There is a sharp conflict in the testimony of the parties upon the vital questions in the case,-and the conflicting con ³⁹ fentions of the parties required' the submission of the ease to the jury upon distinct hypotheses of fact from which diverse conclusions of law would necessarily result. The plaintiff testified that he agreed with the defendant to do certain plumbing, sanitary work, gas fitting and other work, and to furnish the material; that this work was to be done on the premises known as No. 126 North Eden street, in Baltimore City; that there was a paper writing dated November 7th, 1904, signed by the defendant, as to a part of this work, viz, three sanitary closets which were to be put in for the sum of $200.00; but that the other worlc and, materials the defendcmt was to pay for at its reasonable worthj that the defendants from time to time instructed him' as to what work they wanted done, and from time to time made changes in the work, and sometimes ordered work which had been completed' to be re-constructed to meet such changes; that sometimes both defendants would jointly give instructions; that at other times the husband alone, or Hilda Meyer, his wife, alone would give instructions; that a large boiler was ordered by the husband, and a small one by the wife; that the defendants sometimes jointly and sometimes separately would instruct him to change and alter the work. He further testified that the work done in and about the premises amounted to $650.00, and that the materials furnished amounted to $723.95, and that allowing certain credits from December 15th, 1904, to March 3rd, 1905, there was due to him a balance of $898.95. He also testified that this work was done and materials furnished between November 7th, 1904, and February 7th, 1905; that the defendants refused to make further payments on account of the work as agreed; that in the latter part of February, 1905, or the beginning of March, 1905, he and Morris Meyer, met in Baltimore for the purpose of settling their dispute, and agreed to submit the same to arbitration, which they did; that no written submission was ever effected, nor was ever any written decision rendered, but that the arbitrators found that there was $800.00 due to the plaintiff by the defendant; that the defendant then ⁴⁰ offered to him a promissory note for $800.00, that he required an endorsement on said note, and that the defendant did not furnish the same, and refused to permit the plaintiff to complete the worh; that at that time the work was nearly completed, and' that the defendant had not complied with his agreement in making payments on account as the work was done and the material furnished.

The plaintiff produced three workmen, who were engaged in the work on the premises, and who corroborated the testimony of the plaintiff as to work done and materials furnished. G. Schwartz, testified that he was a member of the board of arbitration, above referred to, and that.the award' was made in favor of the plaintiff as testified to by him. Herman Meyer, a son of the defendants, testified that on the seventh of November, 1904, the' plaintiff and the defendant, Morris Meyer, entered into an oral agreement to do all the worh and to furnish all the materials in question for the sum of $911.00, including the three sanitary closets; that Morris Meyer had paid to the plaintiff on account of that work the sum of $745.00, and introduced' in evidence seven checks drawn on the Mercantile Trust & Deposit Company of Baltimore for that sum, and testified that the proceeds of these checks were received by the plaintiff on account of the work done and materials furnished under the contract; that on the 22nd of February, 1905, the plaintiff sent to the defendant the following contract, which he asked the defendant to sign and return in order that he might go ahead with the work. The proposed agreement was as follows: “This agreement made this 7th day of November, 1904, between M. Meyers and wife of the first part and I. Frenkil of the second part, both of Baltimore City, Md. “Mr. I. Frenkil agrees to fit in and furnish 8 bath tubs at 126 N. Eden street, hot and cold' water heater boiler and washstand on ground floor back building.

For which M. Meyers and wife of the first part agree to give him $475.00, four hundred and seventy-five dollars. ⁴¹ “And Mr. I. Frenldl also agrees to fit in one 100 Gal. boiler and furnish same with connections for which M. Meyer and wife agree to give him $50.00, fifty dollars (over), and it is also agreed by Mr. I. Frenkil to fit up (3) three separate gas suppliers with gas fixtures and brackets on each floor for which M. Meyers and wife agree to give him one hundred and forty-one dollars ($141.00). And Mr. I. Frenkil agrees to fit up first, second and third floors four (4) .gal. sinks with water pipes and connections for which Mr. I. Frenkil agrees to do for $50.00 and which M. Meyers and wife agree to give him. “All the above work to be done at 126 1ST. Eden street and for which M. Meyers and wife agree to give M. I. Frenkil the sum of $716.00, seven hundred and sixteen dollars.” The witness further testified that Morris Meyer refused to • sign this contract; first, because the name of Hilda Meyer was included in it; as she had no interest therein, or in the property; secondly, because an item of $45.00 for roofing was not included; thirdly, because the $50.00 for the second boiler should not be included, as the plaintiff had agreed to put in one boiler which would furnish all the necessary water. He testified that there was no arbitration, but that the plaintiff refused to complete the contract unless he received his money, in advance; that Morris Meyer told the plaintiff he was willing to leave the matter to three disinterested parties; that the plaintiff and defendant then met some people who listened' to the plaintiff’s statement of the case, and told him he had better go ahead and complete the work; that the plaintiff refused to complete the work, and that the defendant was compelled to pay to Abraham J. Seitzman and Max Klaze the sum of $131.00 or $161.00 to complete a certain part of Frenkil’s work, and that he paid to John A. Graham $375.00 for completing another part of the work; and that instead of $911.00 which he had originally contracted to pay he had to pay a sum of either $1,151.00 or $1,181.00, and that the defendant had overpaid the plaintiff’s account. ⁴² Morris Meyer, the defendant, testified that he made an oral contract on November 7th, 1904, for the whole work, and corroborated in all substantial particulars the testimony-given by Herman Meyer.

He testiled that the following agreement, which appears in the record, was .made between himself and the plaintiff on the seventh day of November,-1904, but was not reduced to writing until November 11th, 1904, viz: “This agreement made this seventh day of November, nineteen hundred and four, between M. Meyers of the first part, and I. Erankil of the second part, both of Baltimore City. That in consideration that I. Frenkil of the second part agrees to put in three sanitary closets in house 126 N. Eden street on first, second and third floors, Mr. M. Meyers of the first part agrees to give him two hundred dollars.”. This agreement is under seal, and signed by M. Meyer only. The witness testified that the plaintiff asked him to put the contract as to the sanitary closets in writing, stating that unless it was put in writing he would not be given a permit by the city authorities to do the work; that he had never altered, or changed the oral contract of November seventh, 1904, nor did he ever authorize anyone to alter or change it, and that he never instructed the plaintiff to do any other work or furnish any other materials, nor did he authorize anyone else to do SO.

Hilda