Pope v. King

Briscoe, J., delivered the opinion of the Court. This is a suit, brought by the appellant against the appellees, in the Coúrt of Common Pleas of Baltimore City in an action of assumpsit to recover the contract price alleged to be due on ¿'contract under seal, dated the nth day of July, 1905, between the plaintiff, as contractor, and the defendants as a committee representing the Keistutis Beneficial Association of Baltimore City, a corporation duly incorporated under the laws of this State, for repairs and alterations to church property 506-510 W. Barre street, as per plans and specifications prepared by Henry J. Tinley, architect. The cause of action is an account stated between the parties, showing the contract price for the repairs and alterations to be $2,611, with a credit for cash paid on account of #1,790.90, leaving an alleged balance due by the defendants to the plaintiff, of #810.10. The appellees pleaded the.general issue pleas in assumpsit and an additioual plea for defense on equitable grounds.

The substance of the equitable plea is that an agreement under seal was made by and between the plaintiff and the defendants, as a committee of the Beneficial Association, for the alterations and repairs of the church building according to a copy of the agreement and specifications filed as a part of the plea. The contract price being #2,611, to be paid in three equal parts as the work progressed and upon a certificate of the architect. The plea averred that the plaintiff entered on said work and performed a part thereof. “And the work done by the plaintiff under the contract was done so improperly.and imperfectly and unfaithfully,and was done with such delay that The Keistutis Beneficial Association of Baltimore City was and is entitled to recoup and deduct from the contract price for doing the work required by such contact more than the value of the extra work claimed to have been done on the building by the plain ⁴³ tiff herein and for which this suit is brought. And the plaintiff has received more compensation than he is entitled to receive for the work called for by the contract, and for the extra work for which this suit is brought, when the proper deductions are made for the delay, and for the unskillfull, unfaithful, improper and imperfect manner in which the work called for by the above referred to contract was done; and these defendants and the above referred to, The Keistutis Beneficial Association of Baltimore City, are willing that the claim for the above deductions may be set off against the plaintiff’s claim for compensation for the extra work.” And for a further plea the defendants pleaded the insolvency of the plaintiff and their inability to enforce a judgment, if recovered against him.

In answer to these pleas, the plaintiff denied he was insolvent; that the work performed under the contract was not done improperly or unfaithfully, neither was there any delay in its performance. That the defendants are not entitled to recoup and deduct from the contract price for any work, or for any delay in the work, under the contract and that he has not received more compensation than he is entitled for the work called for by the contract. The contract, which is the basis of the controversy, is dated nth day of June, 1905, and is as follows: This agreement, made this eleventh day of June, nineteen hundred and five, between John W. Pope, of the first part, and A. J. King, George Kimkewicz, John Chester and Vincent Zirleiziris, committee of the second part. Whereas the said John W. Pope, of the first part, agrees to make such alterations to property 506 — 510 W. Barre street, as per plans and specifications prepared by Henry J. Tinley, architect (with the exception of side gallerys and their supports) for the sum of two thousand, six hundred and eleven dollars ($2,611.00), said money to be paid in three equal parts as the work progresses and upon a certificate from the architect.

The said J. W. Pope also agrees to give bond to the amount of one thousand, five hundred dollars ($1,500.00) for the completion of the work, and to secure the owners against ⁴⁴ loss of any kind. The work to be completed in sixty days from time of contract being signed. Whereas the said A. J. King, Geo. Kimkewicz, John Chester and Vincent Zirleiziris, committee of the second part, agree to pay to the said J. W. Pope, of the first part, the said sum of two thousand, six hundred andeleven dollars($2,6i i.oo) for such alterations to property as specified, payments to be made in three equal parts as the work progresses and on a certificate from the architect.

Jno. W. Pope, (Seal) A. J. King, (Seal) George Kimkewicz, (Seal) John Chester, (Seal) W. Zirleiziris. (Seal) Witness: Henry J. Tinley. The case upon trial resulted in a verdict and judgment for the defendant, upon an instruction by the Court, at the close of the plaintiff’s case, to the effect, there being no legally sufficient evidence that the plaintiff had obtained the approval of the architect, the verdict under the pleadings must be for the defendant.

The questions in the case are brought here for review upon an exception by the plaintiff to the rulings of the Court in granting the defendants’ prayer, and in the refusal of the Court to permit certain questions to be asked the witness Zalegiris, as set out in the first and second bills of exceptions. It is obvious, we think, under the facts and pleadings of this case that as the suit is for work required to be done under the original contract under seal, to wit, the alterations and repairs of the church property, as per plans and specifications by the architect, the recovery would have to be, if at all, in a form of action, on the sealed instrument and in accordance with the terms and stipulations of the contract. In the case at bar, the sealed contract provides in express terms that the payments for the repairs are to be made in three equal parts as the work progresses and on a certificatefrom the architect. The suit here is brought to recover for the work done under the original contract and specifications and not for extra work done subse ⁴⁵ quent to the contract.

In O’Brien v. Fowler, 67 Md. 565 , it is said, to entitle the plaintiff to claim under the contract, he must claim in conformity to the terms thereof and not