Orem v. Keelty

Bryan, J., delivered the opinion of the Court. This was an action on the common counts in assumpsit. Keelty, the plaintiff below, entered into a written contract under seal with Orem and others, the defendants, for grading and constructing streets, avenues and sidewalks through a tract of land in the city of Baltimore belonging to them. The contract embraced a number of details, which the present purpose does not require us to consider.

It was agreed that payments should be made at stated intervals upon estimates furnished by S. J. Martenet and Company, and that Orem and his associates should retain ten per cent, of the amount of these estimates, and that the sum so retained should be due and payable only on the completion of the work before the first day of September, eighteen hundred and ninety-five. The grades were to be furnished by S. J. Martenet and Company, and the work was to be done in a good workmanlike manner, under their instructions and subject to their approval. The work was prosecuted under the contract until July, eighteen hundred and ninety-five, when Martenet and Company refused to furnish the grades to Keelty which were necessary for the continuance of the work ; but they were furnished on the eleventh day of Sep ³⁴⁴ tember, eleven days after the time had elapsed which was appointed for its completion. It was finished in December, and on the twenty-fourth day of the month Martenet and Company gave Keelty a certificate stating that they had examined the work and found that it was in accordance with the contract as far as the material and workmanship were concerned.

This suit was brought to recover the ten per cent, which had been retained by Orem and his associates, and judgment was rendered in favor of the plaintiff. The evidence did not show distinctly the circumstances which caused the refusal on the part of Martenet and Company to furnish the grades. But we will assume for the purposes of this case that it was owing to the default of Keelty. But, nevertheless, one fact stands prominently forward which has not been made the subject of contestation or denial.

After the expiration of the time appointed for the completion of the work the defendants permitted Keelty to continue it, furnished him with the grades which were necessary to enable him to do so, and accepted the work and received the benefit and advantage of it. Under these circumstances there can be no doubt that the defendants are bound to pay a fair compensation for the work, labor and materials of the plaintiff. Keelty could not have sustained an action of covenant on the contract under seal; but after the failure to complete the work under the conditions of the sealed instrument a new and distinct contract arose from the acts of the parties ; from the work, labor and materials of the plaintiff furnished for the benefit of the defendants and received and appropriated by them to their own use and benefit. The opinion of this Court in Watchman v. Crook, 5 G. & J. 240 , leaves this question in no doubt.

It is there said : “ If after the work was done, though not pursuant to the contract, the party for whom it was done, accepted it, it would seem right and proper that he should pay for it what it was worth. This, we think, justice would require, and it is believed, that the principles of law do not forbid it. To this effect the law is stated to be in ³⁴⁵ Jewell v. Schroeppel, 4 Cowen’s Rep. 564. It is there said, that 'if there be a special agreement under seal to do work, and it is done, but not pursuant to the agreement, either in point of time, or in any other respect, the party who did the work may recover upon the common counts in assumpsit, for the work and labor, if the work be accepted by the party for whom it was done.

The workman cannot maintain covenant, unless he perform the work strictly within the time. By permitting the plaintiffs, after knowing that the work was not completed in time, to proceed and finish it, he waived all right' to object on that ground, and the law implies a promise on his part to pay what the labor was reasonably worth.’ ” In the opinion a case is quoted from 4 Tauntods Reports, 745, where a contract was made between lessor and lessee that the latter