Petite v. Homes, Inc.

Markell, J., delivered the opinion of the Court. In this case there is a motion to dismiss the appeal on the ground that the bills of exceptions were not signed in due time. As the appeal presents some questions that do not depend upon bills of exceptions, the motion is denied. Lichtenberg v. Joyce, 183 Md. 689 , 39 A. 2d 789, 792 .

The question remains whether the bills of exceptions are properly before this court. The appeal was taken on March 18, 1944. The record was received in this .court on June 16th, within the prescribed three-months’ period. Code, 1939, Art. 5, Sec. 6.

The record was required to be transmitted on or before June 18th. The time for signing bills of exceptions was therefore May 29th; the time for submitting them to the appellee or its counsel was May 14th; the time for return of them to the appellants and presentation to the judge for settlement May 24th. Pennsylvania R. Co. v. Reeley, 179 Md. 35, 38-39 , 16 A. 2d 904 ; Code, Public Local Laws, 1930, Art. 4, Sec. 316; Charter of Baltimore City (1938), Sec. 411. Bills of exceptions were submitted by the appellants to the appellee on May 11th and, after complaining letters in reply, were returned on May 15th without either approval or amendment.

On May 18th an addition to the original draft was submitted. The same day the appellee replied that it could not “accept this paper” for reasons stated; among others, that the time for serving bills of exceptions had passed. On May 25th, at a conference between counsel for both sides and the court, the appellants urged that the bills of exceptions be signed as prepared ; the appellee urged, and the court ruled, that additional testimony on behalf of the plaintiff (appellee) should be incorporated in the bills of exceptions. This was afterwards done by the appellants.

On May 26th the appellee wrote the appellants that it could not accept the paper submitted on May 18th, that service of that paper had been too late, that it could not “waive any provision of the Act,” and that the ten days ³⁸¹ for suggesting amendments had “not yet expired”; and made “formally a return” of the paper without approval or amendment. On June 12th the appellee wrote the appellants that, if the appellants wanted to include certain testimony in the part of the bills of exceptions submitted on May 18th, the appellee would “make no point now of it, because of its being late,” but did intend “to raise the point in the Court of Appeals.” On June 14th the appellee sent the appellants written suggestions for .^inclusion in the bills of exceptions. On June 14th the Court signed an order “nunc pro tunc as of May 11th,” extending the time for signing bills of exceptions to June 14th, and also signed the bills of exceptions. On June 1.5th the appellee endorsed on the bills of exceptions a refusal to approve them “for the reason that only portions of the testimony in the above case were tendered to me or used in making up the bills of exception.” Bills of exceptions must be signed within the time prescribed, unless within that time the court extends the time.

Morgan v. Toot, 182 Md. 601, 604 , 35 A. 2d 641 ; Nicholson v. Walters, 153 Md. 16, 18 , 137 A. 357 . After expiration of the time on May 29th, power to extend the time could not be created by an order nunc pro tunc as of a date earlier than the actual date. “However, bills of exceptions may be signed after the term has expired, if the parties consent, and this consent may be expressed or it may be inferred from the actions of the parties. They may be held to have waived any objection they had, or to be estopped by their conduct from making any.” Morgan v. Toot, supra,, 182 Md. 604, 605 , 35 A. 2d 643 . In Pennsylvania R. Co. v. Reeley, supra, 179 Md. 39, 41-44 , 16 A. 2d 906 , it was held that “the appellee had no power to lessen the period of five days assigned by the statute to the court,” and that by accepting bills of exceptions submitted eight days too late and retaining them for the full period of ten days, i. e., until eight days after the time for presentation to the judge and three days after the time for signing, the appellee “became estopped to raise the point of the ap ³⁸² pellant’s delay.” She was “put to her election whether to accept or refuse the submission.” By choosing to accept she made it impossible for the appellant to have the bills of exceptions signed within the prescribed time.

She thereby consented, by implication, to having them signed after expiration of the period prescribed. These cases are controlling in the instant case. The time for presenting bills of exceptions to the judge expired cjn May 24th, the time for signing on May 29th. By retaining until May 26th the paper received on May 18th, and submitting on June 14th suggested additions to it, after participating in the conference on May 25th, the appellee was estopped from objecting to the signing of the bills of exceptions after May 29th.

Moreover, the appellee can not raise in this court the point it elected not to make in the lower court at the time the bills of exceptions were signed. The bills of exceptions, therefore, are properly before this court. This case was a suit brought under the Speedy Judgment Act, by the appellee against the appellants, to recover a balance of $1,544.20 for work done in making repairs to the defendants’ property, No. 2006 Harford Road, in Baltimore. The plaintiff obtained a verdict and judgment for $1,648.43, the full amount claimed with interest; the court allowed the plaintiff a counsel fee of $50.

The defendants, husband and wife, have appealed. The husband, who testified at the trial, will be referred to as the defendant. The plaintiff’s gross claim was $13,094.20, comprising (a) $10,000 for repairs made in accordance with written specifications, prepared as a contract but never signed, though the terms were agreed to, and (b) $3,094.20 for 17 items of extra work, for which the defendants “promised to pay” that sum. Payments of $7,950 and $3,500 and an allowance of $100 left a net balance of $1,544.20.

The defendants disputed both the terms of the contracts and the plaintiff’s performance. They contended (a) that the $10,000 contract covered not only the work mentioned in the specifications but also all other work necessary to ³⁸³ complete one store and four apartments, including work left undone by the plaintiff and some of the 17 items of alleged “extra work,” and (b) that they were put to expense (i) to do work left undone by the plaintiff and (ii) to correct work improperly done. The declaration contains three counts, (1) the common count for work and materials, (2) a count on the $10,000 contract, and (3) a count for the extra work. With the declaration were filed the “unsigned contract,” viz., the specifications, and a statement of each of the 17 items of “extra work,” and an account showing the 18 items of the plaintiff’s claim and the three credits.

The defendants each filed, under oath, general issue pleas and a “plea of recoupment,” that the plaintiff is indebted to the defendants “in an amount greater than the plaintiff’s claim,” viz., $2,159.02, comprising 15 items for work left undone or uncorrected by the plaintiff and one item for interest. The “plea of recoupment” evidently was intended as a counterclaim for an affirmative judgment. The verdict makes this difference between recoupment and counterclaim immaterial. Impervious Products Co. v. Gray, 127 Md. 64, 67, 68 , 96 A. 1 ; International Harvester Co. v. Neuhauser, 128 Md. 173, 180 , 97 A. 372 .

The pleadings thus presented 34 items of dispute as to facts. At the trial, which lasted three days, this number was reduced to 24. Subject to the defendant’s counter claim, the plaintiff’s $10,000 item and 9 of its items of “extra work,” amounting to $2,057.00, were agreed upon, leaving in dispute 8 items of “extra work,” amounting to $1,037.20, and the 16 items of the defendants’ counterclaim for $2,159.02. Of these 24 issues of fact, as to the terms of the contract and the plaintiff’s performance, 23 were submitted to the jury and by the jury’s verdict were resolved in favor of the plaintiff.

One item of the defendants’ counterclaim, $656.75 for alleged breach of warranty of a remodeled heating plant, the court withdrew from the jury for want of evidence legally sufficient to support it. This action of the court is here for review. ³⁸⁴ The plaintiff began work in July, 1942. In October, 1942, its last item of “extra work,” No. 17, was agreed upon, viz., “For furnishing all labor and materials to remodel the present heating plant and to include summer and winter hook-up with an eighty-two gallon boiler. Same to be covered and set on a stand to furnish additional radiation and anything else pertaining to the heating plant that is necessary to give you sufficient radiation to heat the house properly.

This is as per our understanding with you for the lump sum of $870.00.” This item in the statement filed with the declaration was taken verbatim from a letter of October 2, 1942, from the plaintiff to the defendant. It is one of the nine items agreed upon at the trial, subject to the defendants’ counterclaim. In a letter of October 30, 1942 the plaintiff said: “We hereby certify that the heating plant which we are installing and altering in the said premises is satisfactory and sufficient to adequately heat all parts of the said premises, and we hereby guarantee the said heating plant for a period of at least one year, during which period we shall service the said heating plant without any charge to you.” The tenth item in the'defendants’ counterclaim is: “Keplacing heating system, installing new steam heating boiler, material and labor, $656.75.” The work of remodeling the heating plant was in charge of a plumber named Wiessner. In December, 1942, after the work had been done, the defendant complained that the plant was using too much fuel.

It was found that the oil feed line was leaking. That, the defendant testified, was “a very minor thing,” but was never rectified by the plaintiff. He also testified that when he and Weissner and the plaintiff’s new president, Kishter, went to the house to find the leak, Wiessner said to Kishter, “I told you that this boiler was not big enough to heat this building, no matter whether you put one booster or ten boosters on it,” and Kishter said he was going to rectify this condition by taking Wiessner’s advice and taking the boiler apart, adding more sections ³⁸⁵ to it and putting in a booster and an oil burner, but that was never done. In October, 1943, the defendants replaced the heating system with a coal-burning system, put in for them by Wiessner, at a cost of $656.75.

Wiessner had died before the trial. Kishter on cross-examination had said that there was no conversation between him and the defendant and Wiessner regarding general insufficiency of the heating plant and that Wiessner never told him the plant would never be sufficient to heat a building of that size. Witnesses for the plaintiff testified that the plant had been inspected before the guaranty was given and had been tested afterwards, and could and did heat the