North Bros. & Strauss v. Mallory

Page, J., delivered the opinion of the Court. The declaration in this case contains seven counts; six of them are common counts in assumpsit; the seventh sets out substantially that the plaintiff and defendants agreed in writing that the former should furnish, deliver and erect in the basement of the defendants’ building, a steam plant, for which the defendants were to pay the plaintiff $2,000 ; that the said steam plant was to be, one 9x12 ball automatic engine (Erie) 45 horse power, second hand but guaranteed to be in first-class condition, and one horizontal tubular boiler 60 inches diameter 13 ft. long, actual 70-horse power; the same to be equipped set up and connected as detailed and specified in the written agreement; that subsequently the said parties further agreed that in lieu of the boiler originally contracted for in the written agreement, the plaintiff should furnish a new boiler, for the sum of $300 additional, “making the total amount of the contract price of said work and material $2,300, which ” the defendants agreed to pay, and promised to permit and suffer the plaintiff and his workmen and employes to enter upon their premises and complete the work, and that the plaintiff “did commence and in part perform and furnished a portion of said materials, &c., and expended large sums of money in and about the purchasing of said materials and for woi'k done,” &c.; yet the defendants would not permit him to proceed with or complete the work, &c., but wrongfully dis ³¹² charged him and prevented him from completing the work, whereby he lost the profits which otherwise would have accrued to him from the completion of the work, and “ the value and price of the work and material actually done and provided.” The defendants plead the general issue pleas, and after trial and judgment for the plaintiff have appealed. There are but two bills of exception. The first raises a question of evidence; the second brings up for' review the action of the lower Court upon the prayers that were severally offered by the parties.

In the first exception, the question presented arose as follows. The plaintiff offered the written contract, which provided among other things that the boiler should bean “horizontal boiler 60 inches diameter, 13 ft. long, actual 70-horse power second hand but in good condition also evidence tending to show that he had delivered on the premises such a boiler. He then offered a paper purporting on its face to be a certificate of the State Inspector to the effect that the said boiler was in good condition and capable of sustaining a pressure of 100 lbs. to the square inch. To the admission of this paper the defendants objected, “unless the plaintiff proposed to follow it up by identifying the boiler furnished by the plaintiff with the boiler mentioned in the certificates.” The plaintiff then offered proof tending to prove that “].

C. Smith, the State Inspector,” gave the certificate to the plaintiff and that “he saw, examined and tested the boiler again in the basement of the defendants’ factory, and that it was the boiler covered by the certificate.” The Court thereupon permitted the paper to go to the jury. After much testimony had been taken, and all the evidence on both sides was in, the defendants moved the Court to exclude the certificate from the jury for the reasons, 1st., that there was no identification of the boiler inspected with that furnished by the plaintiff, and 2nd., “because there was no proof of the alleged signature of the State Inspector.” The Court overruled the motion, and the defendants excepted. There had been no additional testimony offered between the time of its admission by the Court and that of the entering ³¹³ the motion. The motion therefore was nothing else than a request of the Court to review and reverse its previous ruling.

That ruling the defendants had permitted to pass without reserving an exception, as they might have done. If they desired to raise any question as to signature of the Inspector, it was open to them at the time the paper was offered to do so. They should have done so at that time, and it was too late to make the objection after the Court had ruled upon its admission, unless something had intervened that gave them notice of objections of which prior thereto they had had no information. In Dent v. Hancock, 5 Gill, 127 , this Court said, it was the duty of counsel, if aware of the objections to the admissibility of evidence, to object at the time it is offered, or if unapprised of such objections at the time the evidence had gone to the jury, he must raise his objections within a reasonable time thereafter. “To allow a greater latitude, as to the time of raising such objections to testimony, might be productive of much inconvenience and injustice.” Hagan v. Hendry, 18 Md. 188 ; Davis and wife v. Patton, 19 Md. 128 ; Marfield v. Davidson, 8 G. & J. 213 .

We find no error in this ruling of the Court. The plaintiff offered five prayers, all of which were granted; the defendants, nineteen, of which eight were granted, eight rejected, and two rejected as offered but granted with modifications. The original written agreement was proved, as set forth in the narr. The plaintiff commenced the work and delivered on the premises a boiler and proceeded to connect it as provided in the agreement.

On the 1 ith of January, 1900, the defendants wrote to the plaintiff, that “the boiler you have placed in our factory does not come up to the terms of your contract,” and in the same letter proceeded to state many other things in which, they claimed, the plaintiff had not complied with the terms of his contract.' There was also evidence tending to show that prior to the date of that letter there had been complaints of the boiler, and that the plaintiff had offered to substitute therefor a new boiler, and install that in the factory at an increased cost to the defendants of three ³¹⁴ hundred dollars On the tenth day of January, 1900, the defendants wrote, “we agree to this on the following conditions,” viz. (among others) that the original contract of November 29th, should be still in force except “so far as we now agree to change it; ” no rights to be surrendered under that paper ; the new boiler to be made “according to specifications furnished by the Maryland Casualty Company,” copy to be furnished by the defendants ; and the “work of removing the boiler now in, not to be begun until the weather will permit us to run our business without heat in the building; and must be finished within a reasonable time, say thirty days from time you start to put boiler in,” This qualified acceptance of the plaintiff’s offer was in turn accepted by him, as will appear from his letter of February roth. There was also evidence tending to prove that if the plaintiff had been permitted to continue his work, he would have completed it with “due diligence and dispatch,” and would have been able to make.,the alterations and corrections which were incidental to the unfinished state of the work ; and that he had offered to make such alterations and corrections. The defendants offered evidence tending to prove that the contract, modified as stated, was not completed by the plaintiff according to its terms ; that its completion “ was not waived by the defendants nor prevented by them or by their fault,” and that they had stopped the work because the “ plaintiff knowingly failed to comply with the material terms of his contract.” There was also evidence to show that the engine furnished did not come up to the requirements of the contract, in that it did not develop the requisite horse power. ■ The plaintiff in his letter of the 13th of January admitted this, and proposed to install another in its place.

He writes, “ as the ball engine does not come up to the horse power, which, I supposed it would develop, when my contract was made with you, * * * I propose to install ” in place of it, another (which he describes) “which will give you under 300 revolutions 49 I. H. P. this being 4 indicated H. P. above what I originally claimed for the ball engine.” It appears that ³¹⁵ negotiations had already been begun and were afterwards continued, having for their object the installation of the new engine ; but they do not seem to have culminated in an agreement. On February ioth the defendants write: “You wrote us a letter some time ago stating you would put us in a New Erie ball engine 9^x10. This point also should be settled.” “ As to accepting any part of the work, and paying a consideration for the same, we cannot do this. If we give the contract to another, it must be in its entirety.

We know of but two alternatives—one for you to go ahead and finish your work according to the new specifications—the other to rescind your contract and remove your material. Unless you select between the two in the next few days, we will concede that you have chosen the latter and will go ahead and give the contract to another firm.” The plaintiff in his reply to this letter, on the same day, after stating his view of the matters between them, and that the defendants had agreed through Mr. James E. North and Mr. Palmer that “ they would only accept ” the new engine, subject to the acceptance of the Maryland Casualty Company, says that had he “ been allowed to proceed with his contract the new Ames boiler and the new ball engine would have been finished complete and turned over to you long ago” On 13th February the defendants write him that they cannot accept either one of the offers of February ioth ; that the breaches of his contract are numerous; that it was then “nearly three months since the work was begun, and as we cannot see that you are now any nearer a conclusion than when you started, we are compelled to cease further negotiations with you.” There was also evidence tending to show that had the plaintiff fully performed the contract as modified, and had furnished the new boiler and engine, he would have lost $300 or $400. Upon this state of the proof, the Court by the first prayer of the plaintiff instructed the jury that if they found the original written