Presbyterian Church v. Hoopes Artificial Stone, Cement & Paint Co.

Bryan, J., delivered the opinion of the Court. The Hoopes Artificial Stone, Cement and Paint Company made a contract with the Presbyterian Church of Hagerstown, by which it agreed to cover the walls of its parsonage with artificial stone. The evidence tended to show that some of the terms of the contract were verbal, and that others were contained in written correspondence between the parties. This suit was brought by the Hoopes Company to recover an amount alleged to he due for the work done on the parsonage.

There was evidence that it was agreed that the walls were to he covered with artificial stone of a gray color, which was warranted to endure exposure to the weather and not to peel off; and also that the work was imperfectly done, and not in the manner required by the contract; and especially that the stone covering was streaked, speckled, spotted, and of a variegated and unsightly appearance. It was the function of the jury to pass on the weight and value of this testimony ; and it is our duty to state the propositions of law applicable to it. ⁶⁰³ If the plaintiff completed the work according to the terms of the agreement, it was entitled to recover the contract price. If, however, it was done imperfectly, or in any manner variant from the stipulations of the contract, and was accepted by the defendant, the plaintiff was entitled to recover what it was reasonably worth. There can be no question on this point since the decision of this Court in Watchman and Bratt vs. Crook, 5 G. & J., 239.

We take the principle to be, that a person entering into a contract, has a right to insist on the performance of it in all particulars, according to its meaning and spirit; but that if he chooses to waive any of the terms introduced for his own benefit, he has the power to do so. If he contracts for an article of a particular quality or style of workmanship, and he elects to accept in lieu of it one of another kind, he discharges the other party from the obligation of furnishing an article which complies with the specifications of the contract, .and he becomes bound by a new implied contract to pay for the article, which he has accepted, what it is reasonably worth. And so where there is a contract for work of a particular description, and he accept work of another kind. But he is not obliged to accept anything else in place of that which he has contracted for; and if he does not waive his right, the other party to the contract cannot recover against him without performing all the stipulations on his part.

The question then in the present case, supposing that the work has not been done according to the contract, is whether the defendant has accepted it. The law on the subject of accepting work done on the land or property of another, has sometimes been declared with great severity against parties doing such work in a manner not conformable to the contracts which they have made. But these harsh judgments go beyond the requirements of justice, and are much modified by the benign and equitable construction of contracts which prevails in this State. ⁶⁰⁴ It is true, when work is done on a man’s house, it is in a measure fastened upon him, and he cannot very conveniently relieve himself from it,