O'Brien v. Fowler

Alvey, C. J., delivered the opinion of the Court. This is an action of covenant brought by the plaintiff, the present appellant, against the defendants, the latter being a board of examiners, created by the Act of the General Assembly of 1882, ch. 171, amendatory of the Act of 1880, ch. 443, providing for the completion of Edmondson Avenue, in Baltimore County. The plaintiff was the contractor for doing work on the line of the road, and it appears thp,t he entered into three separate contracts for doing the work on three sections or distinct parcels of the line. The contracts are all under the hands and seals of the parties thereto, and the declaration contains five counts; the claim of the plaintiff being for money due for work done under the several contracts, and for extra work done, as contemplated by said contracts, according to the allegations pf the plaintiff.

To the first four counts of the declaration the defendants pleaded, and upon which pleas issues of fact were formed and tried, resulting in a verdict and judgment for the plaintiff. But to the fifth count of the declaration, as finally amended, the defendants demurred, and that demurrer was sustained by the Court. This ruling up'on the demurrer gives rise to the question presented on this appeal. The fifth count demurred to is in form as follows: “And for that whereas, the plaintiff did and performed certain other work, and furnished materials therefor, in and upon said three parcels of said Edmondson Avenue, specified in ⁵⁶⁴ the contracts mentioned in the foregoing counts, idhich work and materials were not embraced in said written contracts, hut which the said writteq contracts authorized and sanctioned in the terms following : ‘ Eo claim for extra work will he allowed, unless the same shall have been performed through a written order signed by the engineer and approved hy the examiners and all of which work was done and materials furnished hy the plaintiff hy order and direction of the defendants and their engineer, and was received and accepted by them and their engineer, and said defendants expressly promised to pay for the same, and the written orders so required therefor, were not received hy the plaintiff only through inadvertence, procrastination and neglect, and were waived by the defendants; and that said engineer made an estimate of the work so done under said contract, but that the same was fraudulently made, whereby the character, quantity and value of said work was greatly under-estimated, and that the defendants refused to pay the plaintiff the fair and true value of said work, although often requested so to do, to the damage of the plaintiff to the amount of |5,000.” As will be observed, according to the allegationjn this fifth count, it was expressly stipulated in the contracts, that no claim for extra work should be allowed under the contracts, unless the same was done by written order signed by the engineer, and approved by tfie examiners.

This was an important stipulation of the contracts, inserted for the protection of the public. It was made a condition precedent; and the plaintiff was under no obligation to do extra work in the absence of such written order and approval; nor can he claim for doing such work under the contracts, except by alleging and showing the written order of the engineer,