Stewart v. American Bridge Co.

Burke, J., delivered the opinion of the Court. This is the defendants’ appeal from a judgment entered against them in the Superior Court of Baltimore City. The declaration contained the common counts only to’ which the defendants pleaded the general issue pleas, upon which issue was joined. Subsequently, the defendants filed the following additional plea, viz: That at the time the plaintiff’s action was commenced the plaintiff was indebted to them in a large sum of money, growing out of the furnishing of material and work and labor with reference to the erection of the warehouse known as Numbers 28 — 30-32 ‘Hopkins Place, in the city of Baltimore, towit: 13.78 for failure to paint wall boxes; The sum of 50.80 for sundry cutting and patchingof walls made requisite . by the plaintiff failing to construct its beams and other structural iron work to conform to the plans and specifications; The sum of 5.95 for making, at the request of the plaintiff, certain templates; The sum of 687.70 paid to the Chesapeake Iron Works for flitch plates, which the plaintiff had agreed to furnish, and, nevertheless, failed so to do; The sum of 445.00 for setting steel beams, taking down and resetting the same, including the necessary cutting out and rebuilding in connection with the location of the The sum of ²⁰⁹ channels and beams for the stair landings; The sum of 7.60 paid Deitrich Bros, for clean-out doors, which the plaintiff should have, but did not furnish; #1,210.83 Forwarded, #1,210.83 The sum of 1,375.00 being the amount of liquidated damages paid by the defendants to the owners of the building by reason of their failure to complete the same as by the contract provided, the entire ' delay in' so completing said buildings having been occasioned by the negligence, default and wilful acts of omission and commission of the plaintiff; The sum of 362/55 temporary canvas covering, and other protection to the Hopkins Place elevation, caused by the failure of the plaintiff to have fronts installed as required; The sum of 225.00 cost of putting in temporary stair platforms, on account of the plaintiff’s failure to have permanent platforms-delivered on time; The sum of 8,000.00 being the additional cost incurred by the defendants- in erecting said building, by reason of the manner of construction made requisite and the delay-occasioned' by the failure of the plaintiff to furnish the material when and as required by the defendants and in accord with the understanding and agreement had with the plaintiff; which said sums amounting in all to --#11,173.38, exceeded the damages sustained by the said plaintiff by reason of the non-performance by the defendants of the said several supposed promises and undertakings in the declaration herein mentioned, and out of which said sums of money so due and owing from the said plaintiff to the said defendants, the said defendants are ready and willing and hereby offer to set-off and allow to the said plaintiff, the American Bridge Company, the full amount of said dam- ²¹⁰ ages, according to the form of the statute in such cases made and provided, and claim judgment for such balance as may be found due to the defendants from the plaintiff on said account.

Issue was joined by the defendants upon the traverse of the plaintiff to this plea, and the case proceeded to trial, which resulted, after a great mass of testimony had been taken, in a judgment for the plaintiff for twelve hundred and seventy-five dollars and eighty-two cents ($1,275.82), from which this appeal is taken. Twenty-one bills of exceptions were reserved by the defendants. Eighteen of these relate to the rulings of the Court upon questions of evidence, and the remaining three to the action of the Court upon the prayers submitted by the respective parties at the close of the whole testimony. The exceptions to testimony may be classified and grouped under three general heads, and in this way a separate discussion of them dispensed with; first, the exception to the refusal of the Court to permit the defendants to introduce in evidence the “general conditions” contained in the contract made between the defendants and the owners of the Daniel Miller Warehouse Building which the defendants had undertaken to erect; secondly, the admission in evidence of a certain statement and voucher sent by the defendants to the plaintiff; thirdly, to the exclusion by the Court of the testimony of expert witnesses, testifying as such, to show that the unit cost of labor in handling the timber and brick construction of the Miller Building was increased beyond the normal price paid for such labor» by reason of the failure of the plaintiff to deliver the material which was to be furnished by it in the prosecution of the work, with a view of thus establishing a loss or damage, which the defendants alleged they had suffered, and for which the plaintiff was sought to be held responsible under the last item of the defendants’ additional plea; fourthly, the ad-admission in evidence of certain original memoranda of superintendents of Wyatt & Nolting, the architects; made at the time, in the course of their duty, and reported daily to their employers as the work progressed — the persons who made these memoranda being out of the jurisdiction of the Court and their handwriting being proven. ²¹¹ It ■ becomes necessary, in order to ascertain the legal principles which should control*the case, to understand the main and controlling facts disclosed by the record.

On the 27th of May; 1904, the defendants entered into a contract with the owners of ground on Hopkins Place, in the city of Baltimore, for the erection of a large warehouse spoken of in the evidence as the Daniel Miller Building. This building was to be erected in accordance with the approved plans and specifications prepared by Wyatt & Nolting, who were the architects for the owners. The plans for the building were prepared, and were approved by Mr. E. D. Preston, the Building Inspector for the city, on June 9th, 1904, and it was upon these plans that the defendants bid for the erection’ of the building was based, and upon which the contract was awarded. On the 28th of April, 1904, the plaintiff, being one of the largest structural steel and iron concerns in the country, had obtained from the architects a set of plans with a view of submitting a bid for furnishing and erecting the structural and architectural iron work for the Miller Building.

Subsequently it did submit a proposition to the defendants for furnishing and doing this work, and on June 23rd, 1904, a contract was entered into between the plaintiff and the defendants by which the plaintiff agreed to furnish and erect complete the steel and iron work for the building. Only such portions of this contract as relate to the issues raised by the pleadings need be noticed. The plaintiff agreed; first, to furnish and erect complete all the cast iron, steel, ornamental iron, Goetz-bog anchors, rolling steel door, and everything of a like or kindred nature -called for in the specifications under the head of structural iron work, except metal frames and fire shutters; secondly, to commence at once the preparation of their material, and at all times keep themselves advised as to the progress of the work, and commence delivery and erection of the south row of columns and bases, the four rows of columns and bases on Liberty street, the lintels and pavement beams on Liberty street, within ten days from the date of the contract, and the remainder as soon as ²¹² the building is' ready to receive the same, carrying on a continuous delivery and erection, in. such manner as the work may require, without delay thereto, and as directed by the defendants, until the completion thereof, in so far as the completion appertains to the material which was to be furnished under the contract. In the event of failure of the plaintiff to commence and continue delivery as agreed, subject to the delay of common carriers, notice of such delay to be given the defendants, the defendants were authorized to pzirchase such material and employ such additional men as might be required to carry on their work zvithout delay, and charge the expense thereof to the plaintiff; thirdly, that all the cast iron, steel and ornamental iron work, mentioned in the contract, should be in strict accordance with the plans and specifications prepared for the same by Wyatt & Nolting, the architects, and subject to their inspection and approval and satisfactory to the defendants; any material delivered or work done failing in these requirements to be immediately removed from the premises by the plaintiff and replaced in a satisfactory manner, at their own cost and expense, without delay to the building; fourthly, that no payment made under the contract should operate as an admission on the part of the defendants that the contract, or any part thereof, had been complied with, or that any detail of the work had been properly performed, in case the fact should be otherwise, or so as to preclude any action for damages against the plaintiff, should the work and materials required not be performed and furnished in a substantial, workmanlike manner and a proper quality, or should the contract not be faithfully executed in every respect.

Attached to the contract was a schedule showing the material the plaintiff was to furnish. The terms of this agreement were arranged and settled between Henry A. Ramsay, representing the plaintiff, and William A. Rowan, acting on behalf of the defendants. The agreement was sent to New York to be signed by the proper officer of the plaintiff, and returned to the defendants in Baltimore for their signatures. The contract was signed by the president of the plaintiff com ²¹³ pany and returned to the defendants, who declined to execute it, because of certain changes which had been made in the contract by Mr. Ramsay.

These changes have no bearing upon the questions before us, and need not be discussed, as it is conceded that the agreement of June 23rd, 1904, is correctly set out in the record, and is the contract agreed upon by the parties acting through their authorized agents. The plaintiff, without waiting for the agreement to be signed, began at once the preparation and furnishing of material for the building. Subsequent to the agreement the plaintiff discovered that the plans upon which its bid was based were not the correct and approved plans in accordance with which the building was to be erected, and that the approved plans differed in some important respects from those in its possession. The approved plans and specifications, although introduced in evidence, do not appear in the record, and we cannot tell exactly and in all particulars the difference between the two sets of plans; but it does appear that according to the approved plans flitch plates and cleanout doors were to be furnished.

These requirements were not shown upon the plans in the plaintiff’s possession at the time it entered into the agreement. It also appears that by the approved plans, the timbers, which were to go into the wall boxes, were made two inches wider. Mr. Ramsay testified that on the 23rd of June, 1904, when the contract was made, Mr. Rowan assured him that the drawings which he had received from the architects on the 28th of April, 1904, were correct, and that he relied upon that statement, and that Mr. Rowan further stated that there would be ' no delay, because the drawings which we had were all right, and that upon this assurance, the plaintiff, under the verbal order of Mr. Rowan, proceeded at once with the work. This testimony was denied by Mr. Rowan; but that raised an issue of fact for the jury, under proper instructions from the Court as to the legal effect of those statements, if the jury found they were made, upon the rights and obligations of the parties under the contract.

On the 28th of June, 1904. the plaintiff received from the defendants a full set of the approved plans. ²¹⁴ With this outline of the main facts in the case before us we will consider the exceptions to the admissibility of the testimony. The refusal of the Court to admit in evidence the “general conditions” which appear in the record is the ruling complained of in the first exception. These “general conditions” weresent by the architects to persons who were invited to bid for the construction of the entire building, and relate to a variety of subjects, and set out with much particularity a great number of obligations to be assumed by the builder to the owners. There is nothing to connect the plaintiff with these conditions.

They were not discussed by the parties, and it would be most unreasonable to suppose that the plaintiff intended to assume obligations and to be bound by conditions which have not the remotest