Montgomery County Board of Education Ex Rel. Carrier Corp. v. Glassman Construction Co.

Oppenheimer, J., delivered the opinion of the Court. A sub-subcontractor for the furnishing and installation of an air conditioning machine in the erection of a public junior high ¹⁹⁵ school in Montgomery County brought suit, through the Montgomery County Board of Education, against the contractor and the surety on its bond, for repairs to the machine which, after its installation, had been damaged by mud and water in a flood. At the conclusion of the sub-subcontractor’s case in the Circuit Court for Montgomery County before Judge Mathias, sitting without a jury, the judge granted the defendant-appellees’ motion to dismiss. The questions presented in this appeal are whether there was sufficient evidence to go to the trier of the facts that the sub-subcontractor had performed any repair work for which it was claiming compensation within 90 days prior to giving notice of its claim, as required by the statute; whether the notice was timely; and whether the work in question was performed in the prosecution of the work provided for in the contract within the meaning of the statute.

On March 19, 1962, the appellee, Glassman Construction Company, Inc. (Glassman) and the Montgomery County Board of Education (the Board) entered into a general construction contract whereby, for a consideration of $1,742,600.00, Glass-man agreed to furnish all labor and materials necessary for the construction of the Randolph Junior High School in Rockville, Maryland. On the same date, in accordance with Code (1957), Article 90, Section 11 (the statute), Glassman, as principal, and the appellee, Home Indemnity Company (Home Indemnity), as surety, executed a labor and materials payment bond in favor of the Board as obligee in the sum of $1,742,600.00. Thereafter, Glassman entered into a subcontract with one John T. Lane (Lane) whereby Lane agreed to perform the heating, electrical and air conditioning work involved in the project. Lane entered into a contract with the beneficial appellant, Carrier Corporation (Carrier), whereby, for a consideration of $103,750.00, subsequently reduced to $102,000.00, Carrier agreed to install certain air conditioning equipment, including a centrifugal refrigeration machine.

Carrier brought suit under the statute and bond. Its action was in two counts. The first sought to recover $22,637.98 as the balance due Carrier on its original contract with Lane. As to this count, a judgment by consent was entered in favor of Carrier and satisfied by Glassman.

In the second count, Car ¹⁹⁶ rier demanded judgment for $18,921.50 for labor and materials allegedly performed and furnished by Carrier under a later and separate contract with Lane for the repair of the centrifugal refrigeration machine which had been damaged, after installation, by mud and water which flooded the basement of the building as a result of causes not brought about by fault on Carrier’s part. The bond was conditioned upon the prompt payment by Glassman to all claimants for all labor and material used or reasonably required for use in the performance of the contract for the construction of Randolph Junior High School. “Claimants” were defined to include persons having a direct contract with a subcontractor of the principal. The bond further provided as follows: “3. No suit or action shall be commenced hereunder by any claimant, a.

Unless claimant, other than one having a direct contract with the Principal, shall have given written notice to any two of the following: the Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the work or labor, or furnished the last of the materials for which said claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the materials were furnished, or for whom the work or labor was done or performed. Such notice shall be served by mailing the same by registered mail or certified mail, postage prepaid, in an envelope addressed to the Principal, Owner or Surety, at any place where an office is regularly maintained for the transaction of business,'or served in any manner in which legal process may be served in the state in which the aforesaid project is located, save that such service need not be made by a public officer.” The quoted terms of the bond embody the relevant terms of the statute. At the trial, Ferdinand Rossiter testified for Carrier. He is Service Supervisor for the Washington, D. C. area in which ¹⁹⁷ Montgomery County is included.

Rossiter stated that the centrifugal refrigeration machine was delivered to the high school in 1962, but the work of installation was performed by Carrier, for the most part, in 1963. In the fall of 1962, Carrier found that the electrical equipment of the machine, consisting of the console, the starter and compressor, had been submerged in water which contained much contamination such as mud. On December 12, 1962, Carrier notified Lane that the machine had been damaged and would have to be repaired; the labor and material cost of the necessary repairs was estimated at $10,500 in a letter dated December 17, 1962. On January 16, 1963, Lane authorized Carrier to make the repairs.

There was testimony, not relevant in this appeal, as to why the repair bill was in the final amount of almost $19,000. A major part of the alleged repair work consisted of the dehumidification of the centrifugal refrigeration machine. Rossiter testified that normally only about 40 hours of dehydration are required for this type of machine, but that, because of the amount of water in the machine and other conditions caused by the flood, the dehydration of this particular machine took approximately 300 hours. The dehydration process was started in the week ending May 29, 1963, according to Rossiter, and was completed on July 28.

Several time tickets of an employee of Carrier were introduced in evidence; the one for the week ending July 30, 1963 shows that the last work on the machine was done on July 28. In a letter dated, on its face, October 25, 1963, addressed to Home Indemnity, with copies to the Board and Glassman, Carrier referred to its earlier letter of September 5, in which it claimed some $33,000 in connection with its original work for the high school, and stated that it amended its claim to include $18,921.50 for services rendered to make necessary repairs to the centrifugal air conditioning machine which was damaged by flood. The letter was sent by certified mail. The Postoffice receipts show that Glassman and the Board received their copies of the letter on October 28, which was a Monday.

October 25 was a Friday. The last day of the 90 day period from July 28 was Saturday, October 26. In granting the appellees’ motion to dismiss, Judge Mathias ¹⁹⁸ found that Carrier had not met the burden of showing that the work done on July 28, 1963 was actually repair work as opposed to work done under the original contract. He found also that there was not sufficient proof the letter dated October 25 was mailed within the 90 day period, but held that, in any case, the meaning of the statute is that actual notice must be received by the contractor within the 90 day period.

In view of his conclusions on the first two issues, the judge did not think it necessary to rule on the contention of the appellees that the work for which recovery is claimed was not work for labor or material which was in the prosecution of the work provided in the contract, but said: “it would certainly seem that it is a logical interpretation that no liability should exist for items which could not fairly be said to be in the contemplation of the parties at the time of the execution of the bond.” We are constrained to differ with the learned judge as to the conclusions upon which he rested his decision. The last issue discussed, although not decided by him, was briefed and argued -in this appeal and we decide it under Maryland Rule 885. We shall consider the three issues seriatim. I Rossiter’s testimony on direct examination that the work done by Carrier on July 28 was in connection with the repair of the machine was explicit and unequivocal.

Under cross-examination, he testified that, to the extent dehydration is normally required, Carrier was doing basic contract work for at least part of the time spent in dehydration. He seemed to be confused by the form in which some of the questions were put to him, but said that the dehydration of the machine was the last item of work he could find that was specifically and solely related to repair work as opposed to contract work. He could not designate the time spent on the job which was required for normal work as distinguished from time spent on repair. He admitted that the time ticket for the week-end of June 26, 1963, was the last specific ticket that indicates solely work on repair.

On re-direct examination, Rossiter again testified that the dehydration process was begun on May 29. He said that, normally, that process would have been over long before July 28, and testified, as he had on direct examination, that the dehydra ¹⁹⁹ tion shown on the last time sheet was a part of the cost of repairs. The appellees seek to uphold the trial court’s ruling on this issue under the rule that when the testimony of a witness is so vague, indefinite and self-contradictory as to be plainly of no probative value, it cannot be the basis of a legal conclusion. We find that rule inapplicable in this case.

On a motion to dismiss, or for a directed verdict when the case is tried by a jury, the party against whom the relief is prayed is entitled to have the evidence and all reasonable inferences to be drawn therefrom viewed in the light most favorable to him. So viewed, we find that Rossiter’s testimony on behalf of Carrier was ample to have the issue of whether any repair work was done on July 28 submitted to the trier of the facts. Rossiter’s testimony, under cross-examination, that he could not designate the time spent on repair work as distinguished from work on the original contract may well be taken as a general answer to a general question. That testimony must be viewed in the context of his prior statements, from which he did not depart, that, had it not been for the damage done by the flood, the dehydration work would have been finished long before July 28.

Rossiter’s statement that the time record for the week-end of June 26 is the last that specifically related to repair work, taken in conjunction with the exhibits offered on behalf of Carrier, is consistent with his unequivocal testimony on direct and re-direct examination, that the work on July 28 was repair work. The time sheets for the week-end of June 26 show that an employee of Carrier was leak testing the machine at that time and found water in it from the original flooding. Clearly, that report could only relate to the repair work. The sheet for July 28 referred only in general terms to the dehydration, but the nature of the dehydration, as part of the repair job, is clearly evident by Rossiter’s testimony that, if it had not been for the damage caused by the flooding, the dehydration essential under the original contract would have been finished long before.

The weight of the testimony on behalf of Carrier was for the trier of the facts. But the sufficiency of that testimony, with ²⁰⁰ the reasonable Inferences inherent in it, to go to the trier of the facts, in our opinion, is clear. II Judge Mathias’ conclusion that there was not sufficient proof that Carrier’s letter of October 25 was mailed within the 90 day period was based upon his finding that the mere fact the letter bore a particular date did not raise a presumption that it was mailed on that day. To rebut that finding, the appellant cites Williams v. Woods, 16 Md. 220, 227, 253-54 (1860) and Barry v. Hoffman, 6 Md. 78, 86 (1854).

In both those cases, it was held that a written document bearing a date is presumed to have been executed and delivered upon the date which the document bears. The force of these decisions in the case before us is weakened by the fact that, in both, the writings involved were delivered by hand. Nevertheless, the rationale of these cases is that the date of the writing may give rise to a presumption that it was executed and delivered on the day it sets forth if other evidence supports such a presumption. In Williams and Barry , the other evidence was to the effect that the documents were delivered by hand.

In the present case, the other evidence is of a different nature, but, nevertheless, in our opinion, is of probative value. There is no question of the fact that Carrier’s letter of October 25 was received on October 28. The letter, as is shown by the Postoffice receipts, was sent by Carrier from Syracuse, New