Reinhart Construction Co. v. Mayor of Baltimore

Bokd, C. J., delivered the opinion of the Court. A contractor for paving certain public alleys in Baltimore City, and its surety on the contract, appeal from a judgment against both, in favor of the city, for the cost of repairs made to the work by tbe city within five years after completion. Exceptions to rulings on evidence and to rulings on prayers for instructions raise three main questions. The contract was for paving, with concrete, sections of fifty-six specified alleys, and, subsequent to its execution. ⁴²² and to the execution of the bond, the highways engineer of the city asked the contractor informally, in letters, to add to the contract the paving of twelve other specified alleys, and the contractor consented to do so, and did the additional paving.

This informal agreement for additional paving was unknown to the surety. It is clear, and not disputed, that the contract itself did not contemplate and provide for the addition of work in entirely different alleys. By the terms of the contract, the work was to be guaranteed and kept in repair by the contractor for a period of five years from the date of its acceptance by the city. And defects from erosion and otherwise having appeared in the surface of some of the alleys during the five-year period, the city called upon the contractor to make the repairs, and, the contractor having refused, did the work by its own agencies; and the present suit and judgment against the contractor and its surety for the cost have resulted.

The extension of the contract to the twelve additional alleys, and any liabilities in connection with the work in those alleys, were excluded from consideration at the trial, and the judgment is confined to the cost of the repairs in alleys specified in the original contract. The surety contends, first, that whatever may be the liability of the principal contractor, the surety has been released from all liability on the original contract by the agreement to add the work on the other alleys. United States v. Poe, et al., Receivers, 138 Md. 466 ; Miller v. Stewart, 9 Wheat. 680 ; Equitable Surety Co. v. United States, to the me of McMillan, 234 U. S. 448, 457 . That agreement did not, however, alter or extend the work under the original contract in any respect, but, as has been stated, was concerned with entirely new, separate work, the doing of which could not affect the original work.

While in words the principal parties were including new work under the original contract,' they were making a new use or application of that contract which amounted to- a new contract — putting aside questions of the validity of their action which have been argued — a new contract which had no connection with the surety’s undertaking. Neither the principal’s undertaking under the ⁴²³ original contract nor that of the surety was altered at all. And in the opinion of this court it could not reasonably be held that there was an alteration in the principal contract which might release the surety, under the rule of law invoked. The prayers of the surety upon the opposite theory were properly refused, and the court correctly excluded from consideration of the jury the letters between the highways engineer and the contractor to make the additions.

A second objection is to the exclusion from consideration of a defense that the contractor was not obliged to repair the effects of erosion, which was not due to inferiority in the materials or the work, but to disintegrating liquids which it was not in the nature of the concrete specified to withstand. Testimony was offered to prove that adjacent houses or yards, not provided with sewer outlets for it, discharged upon the surface of the alleys water containing alkaline washing compounds or other substances which would and did disintegrate concrete, and that, in comparison, alleys into which these liquids were not discharged did not show similar erosion. Generally, when a contract prescribes materials chosen entirely by the owner or engineer, and the contractor has no choice in respect to them, the contract cannot' be construed to impose on the contractor an undertaking that the materials chosen will meet the demands to be made upon them. United States v. Spearin, 248 U. S. 132, 136 ; Bentley v. State, 73 Wis. 416 ; Southgate v. Sanford & Brooks Co., 147 Va. 554 , Even a general guaranty of good condition during a period subsequent to completion has been construed not to include liability for mistake or miscalculation in an architect’s plans.

In MacKnight Flintic Stone Co. v. New York, 160 N. Y. 72, 84 , it was held that an undertaking to build a water-tight underground room and turn the work over “in perfect order and guaranteed absolutely water and damp proof for five years,” did not include a guaranty of the sufficiency of the architect’s plan, but included only one of the quality of material and workmanship according to that plan. “Parties,” said the court, “might make such an agreement, but if the language used admitted of a different construction the ⁴²⁴ courts would be apt to adopt it and thus avoid the conclusion that an impossible result was intended.” See contra,, Lake View v. MacRitchie, 134 Ill. 203 . The parties may agree upon the broader guaranty. Hills v. Farmington, 70 Conn.