Smith v. Stinson

Hammond, C. J., delivered the opinion of the Court. To grossly exaggerate the wrongs, real or imaginary, inflicted by life, has been a preoccupation of mankind, as various writers have pointed out. One tends, said Gabriel Harvey, “to make huge mountains of small molehills.” Phineas Fletcher mused that “she takes me for a mountain that am but a molehill.” Said Richard Brome: “Those people are forever swelling molehills to mountains,” and John Rhode (Cecil John Charles Street) noted in his book “Dead in the Night,” 1942, that “life is a great one for turning molehills into mountains, as the proverb has it.” The appellant Smith, in his brief and oral argument, has enthusiastically embraced this philosophy in attacking a judgment on a jury’s verdict for $1,054.50, the amount sued for by a contractor, Stinson, against the owner of a house who employed the contractor to replace or repair parts of the house which had been damaged by fire but did not pay the agreed price for labor and materials. Smith argued that his motion for a directed verdict at the close of the plaintiff’s case (no evidence was offered by Smith) should have been granted, that he was “denied a fair and impartial trial by the conduct of the court,” that he should have been allowed to testify on cross-examination by his counsel (at the close of his testimony as an adverse witness for the contractor) as to defective workmanship and that the court’s instructions to the jury were tantamount to a directed verdict for the contractor.

The contentions, singly and cumulatively, were made to sound like mountains of error; when examined closely they are but molehills and non-prejudicial molehills at that. In early 1959 a residence in Takoma Park’ owned hut not lived in by Smith was damaged by fire. The insurance adjuster ⁵³⁹ met with Smith and Stinson, who had made a written estimate of the cost of the necessary repairs. Smith was told by the adjuster that some of the cost of the repairs must be attributed to damage from obsolescence and wear and not to the fire.

Smith considered the matter and at a later meeting in writing accepted the repairs listed and the prices estimated in the proposal which had been signed by Stinson, and authorized Stinson to proceed. The work was done but never paid for. Stinson brought suit against Smith in 1962 but was unable to procure service and it was not until 1965, after an attachment was laid on the property, that Smith was brought to trial. The declaration was on the common counts and on a special count, detailing the written agreement “which is attached hereto * * *” and a statement of account showing $1,054.50 to be due and unpaid—the estimated price of $1,415 with authorized extras of $65.00, or a total of $1,480, less credits for work done and material furnished by Smith in a total amount of $425.50.

At the trial Stinson offered his own testimony and that of the insurance adjuster that Smith had in writing accepted Stinson’s offer in the proposal sued on in the special count and authorized the work specified therein to be done, that all the work specified was done except the electrical work which Smith decided to do himself, that all the work was done in a workmanlike manner and approved by the Montgomery County building inspector as in conformity with the County Building Code, that $1,480 was the final contract price, that the credits totaled $425.50 and the amount sued for was $1,054.50, which was a fair and reasonable price for the work done. Smith, called as an adverse witness, admitted that he had signed the estimate and authorized the work to be done. He suggested from the stand first, that the insurance company was responsible for Stinson’s bill since his policy coverage was large enough to cover it and second, that he “never got paid for the full amount of the loss” (although he admitted the insurance company paid him for the fire loss). Smith’s argument that he was entitled to a directed verdict is that Stinson sued on a special contract which was unperformed in full and therefore could not recover for partial performance under the common counts.

A special written contract ⁵⁴⁰ was proved but the writing was not admitted into evidence because a photostatic copy was offered (Smith’s counsel proffered the original from the trial table but for some reason neither Stinson nor the court accepted it). Since there was evidence of a special contract and testimony by Stinson that it had been fully performed, it was proper to submit