Morrow v. Arthur

Boyd, C. J., delivered the opinion of the Court. The parties to this suit were before us in the case reported as Arthur v. Morrow Brothers in 131 Md. 59 . The judgment in favor of Morrow Brothers was then reversed and a new trial awarded. The present record contains twenty-six bills of exception involving the rulings of the Court on the admissibility of evidence and one containing the rulings on the prayers and a motion to strike out some evidence.

The plaintiffs offered nine proyers, all of which excepting; the eighth were granted, and the defendant offered three, the first and second of which were granted as- offered and the third was granted as modified. The plaintiffs’ first was granted in connection with the defendants’ second and their fifth was granted in connection with the defendants’ second and third. The defendants’ second was granted in connection with the plaintiffs’ first and fifth. Special exceptions by the defendants to the plaintiffs’ prayers were also overruled.

The trial resulted in a verdict for the plaintiffs for $4,409.05 against the appellees as garnishees of James Gr. Parlett, .against whom the plaintiffs had a judgment for the above amount, and laid an attachment in the hands of the appellees. Morrow Brothers were the general contractors for the erection of the State ISTormal School building near Towson and made a contract in writing with James G-. Parlett to do certain work in connection with it.

Parlett made a sub-contract with Carroza Brothers and Company, which is also spoken of in the record as an assignment, and the latter entered into a sub-contract with Arthur and Boyle. The contract between Morrow Brothers and Parlett was dated the 6th of October, ¹⁸⁵ 1913, and by it Parlett agreed to construct, finish and deliver to Morrow Brothers “all the 'grading and landscape work’ required for the construction and completion of the Maryland State Normal School * * * in conformity with the drawings and pages 2 to 18, inclusive, of the specifications and bulletin No. 1 made by Parker, Thomas & Rice, architects (which drawings consisting of sheets 1, 2, 3, 4-, 5, 6 and 7 and specifications are hereby made a part of this agreement),” etc. Parlett also agreed to fully complete “ (&) All work actually upon and between the sites of the two buildings and for a space of thirty feet away from all outside walls of both buildings by February 15th, 1914 (with the exception of the filling in space of ten feet from walls, as noted on page 13 of the specifications!, which is to be done as therein mentioned) ; (jb) All work by March 30, 1914.” The appellants offered in evidence a letter dated November 12, 1913, from Morrow Brothers to Phrlett which is as follows : “This is to confirm verbal agreement entered into under date of November 11th, that the sum of Six Hundred and Sixty-six Dollars and Sixty-seven Cents ($666.67) for excavating in tunnels, is to be added to tbe total amount of your contract for the Grading, Excavations, etc., for tbe Administration Building of the Maryland State Normal School near Towson, Md. “It is also agreed that should ledge rock be encountered in said excavating for tunnels, you are to be allowed as extra the sum of Ninety Cents (90c.) per cubic yard, for removing all ledge-rock excavations in said tunnels.” That letter was written the day after a conference between Parlett, Mr. A. T. Carroza and Morrow Brothers in an effort to settle a question which had been raised about the tunnels. It wras after the contract had been assigned or sub-let- to Carroza. Parlett testified that he never agreed to' the terms set out in that letter, which the appellants claim was a modification of the contract of October 6, 1913.

Mr. Carroza’s ¹⁸⁶ evidence on the subject was as follows: “Q. Mr. Parlett testified you were present at the conference at Morrow Bros.’ office November 11, 1913 ? A. I was. Qi. State what took place at that conference?

A. That letter sets forth exactly what took place; the contents of that letter show actually what took place in the office of Morrow Bros, that day. Q. I will read it (reading); that is what was agreed to? A. Yes, sir. Q. That was to be added to the main contract of $44,500 ?

A. No; I can not say that; it was as an extra compensation. Q. To the main contract? A. Yes, sir.” Carroza testified emphatically that Carroza Brother’s & Company did not agree to do any tunnel work and that their contract with Parlett did not embrace such work. Frank J. Boyle, Parlett and L. B. Williams^ engineer for Arthur & Boyle, testified that Charles Morrow asked Boyle what he would do tire tunnel work for and he told him two dollars a cubic yard, and after some conversation he told Parlett to give Boyle an order to go ahead which his firm did and removed 3,150 cubic yards in doing so, for which he was paid $1,890.95, leaving a balance of $4,409.05.

Morrow denied that he had made any such contract but insisted that he was simply urging Parlett to go ahead with the work under his contract. It is not denied that Arthur & Boyle did the work on the tunnels. Carroza Brothers & Company did not contract with Arthur and Boyle to do that work, as they contended and still contend that their contract with Parlett did not call for the work on the tunnels. The evidence is conflicting, but it seems to be clear that "Morrow Brothers have not paid for the tunnel work in full, but they, claim that it was embraced in the contract with Parlett and that a release executed by him was in full for everything, The written contract seems to definitely point out what Parlett was to do as will be seen from what we have quoted above from it.

When Mr. Towne, supervising architect for Parker, Thomas and Rice was on the stand he was asked whether their sheets and plans 1 to 7, inclusive, and bulletin No. 1 include the tunnels and fan room. That was ¹⁸⁷ objected to but be was permitted to answer and said: “The tunnels are not shown on those particular ones mentioned on the landscape and grading.” That is the first exception and wo can see no possible objection to that evidence. He was representing the architects and there were two sets of drawings—one set was known as the “'grading and landscape” sot, and the other as the building or construction sheets. Par-left’s contract was in reference to “grading and landscaping” and only the one set was made part of that agreement.

Possibly the jury could have looked at the shoots. 1 to 7 of the grading' and landscaping set- and have determined whether the tunnels were shown on them, hut the better and proper way was to ask the architect who was familiar with them, had them before the jury and could explain them, if necessary. The second exception was waived. We have no doubt about the. propriety of the question asked Mr. Boyle in the third exception. He was asked whether he did the work, but. that was objected to.

Hone of that lino of testimony would be relevant or admissible if the appellees’ contention be not. correct, but surely if it is correct there can he no doubt about it, unless affected by the release which we will refer to later. Inasmuch as the terms of the contract, such as “grading and landscaping,” etc., seems to require some explanation wo said in the former opinion, that oral evidence was. admisai ble, but it may well be questioned whether there is. any legally sufficient evidence to show that the original contract did include the tunnels and the fan room. In the first appeal Morrow Brothers, offered no evidence on the subject and there is certainly very little, if any, evidence in this record to sustain their contention. Parlett was asked in the fourth exception about the arrangement with Boyle to dig the tunnels and was then asked: “Was that the only contract you had with Morrow Brothers, for digging the tunnels ?” We see no objection to that.

He claims that the written contract did not include it and there was. ample evidence to support that contention, but it was necessary to prove the contract or agreement under which it was done, if it was not covered by the written eon- ¹⁸⁸ tract. Ho possible injury was done by tbe question in tbe fifth exception. The letter in question was there and even if the interrogatory incorrectly stated its contents, the jury had the letter before them and no hurt could have been done. There can he no valid objection to the question in the sixth exception.

The witness had the right to explain the circumstances under which the letter was written. The seventh, eighth and ninth were also admissible. The tenth exception was taken to the refusal of the Court “to strike out all the testimony of Messrs.. Boyle, Parlett and Williams tending to show anything with reference to any new contract for the tunnels.” That ruling was correct.

The theory of the appellants, was that Parlett was hound to dig the tunnels and prepare the fan room under the original contract. The appellees took the opposite view. It is clear that the contract of October 6, 1913, did not in terms include the tunnelling referred to and what we have already said indicates our views about it. As we have seen, the tunnels did not appear on sheets 1, 2, 3, 4, 5, 6 and I and the specifications made part of the agreement.

As there were two sets of plans there was no reason why Parlett should be governed by the set which was. not used in connection with “Grading and Landscape.” The only evidence in the record- which could at all support the theory of the appellants was a question propounded to Mr. Towne by their attorney, which was: “I would like to ask the witness, is not digging a tunnel or foundation grading the same as any other- kind of grading ?”, to which he answered “Yes, sir.” I'f the witness is correctly reported in the record, it would seem to be a most remarkable answer, if intended to apply to the circumstances proven. To say that digging a tunnel or foundation is grading like any other kind of grading certainly is not in accordance with what people generally would understand to. be grading, hut if that be possible in any case it could not be when there is a set of plans showing what the grading and landscape work was intended to be as there is here. The witness then testi ¹⁸⁹ fled that “these other plans,” referring to' the seven sheets, “are in reference to the grading and landscaping and do< not include the building in those particular sheets and that the tunnels and fan room are shown on the building plans and specifications.” The question was not whether any tunnels and a fan room were shown on the building plans, but whether they were on the plans made part of the agreement for grading and landscaping which Morrow Brothers made with Parlett. Mr. Towne said that the tunnels were underneath the buildings, and the fan room was for the ventilating fan, that the tunnels were below the basement floor, and in answer to the question: “Did the grading and landscaping call for (to) go below the basement floor on those first sheets you mention he said, “I should say just about to the basement floor.” He then testified that the tunnels and fan room were beneath the basement floor and the work on the same was done by someone and was accepted by the architect on behalf of the State: The eleventh, twelfth and thirteenth exceptions were to the introduction of certain letters notifying Morrow Brothers^ in one of them, that Arthur and Boyle were having difficulty with Carroza Bros. & Company about payment for work done by them under their sub-contract, and notifying them to retain enough money to hold them harmless and in the others to retain in their hands money due Parlett.' They were not very material, but could not have done any possible harm.

Mo reference is made in the brief to the fourteenth and we suppose that was abandoned, as. the fifteenth was. In the fifteenth, Mr. Pnrdnm, secretary and treasurer of the commission representing the State in the work, was called by the plaintiffs, in rebuttal. He was asked: “On Cross-Examination Mr. Morrow stated that the tunnels' and fan room had never been abandoned from the time of the signing of the contract until they were finally dug and completed; please state whether they were ever abandoned during that-period?” That was objected to, the objection