Turner v. Eagan

³⁸ Judge Briscoe delivered the opinion of the Court. This is an action of assumpsit, brought by the appellee against the appellant, in the Baltimore City Court, to recover 'for the installing and furnishing of a low pressure steam heating plant, on the premises of the appellant, No. 1814 N. Charles street, Baltimore, according to an agreement between the parties. The declaration contains the common counts and with it was filed and attached thereto an agreement in writing, and an account, showing the contract price, for the work to be done at the sum of seven hundred dollars. The case was submitted to the Court without a jury, and was tried upon issues joined, on the, pleas of never indebted and never promised as alleged, and from a judgment in favor of the plaintiff the defendant has appealed.

At the close of the testimony the case was submitted on the part of the plaintiff, without argument or instructions. Thp defendant at the trial presented five prayers, to the rejection of which an exception was taken. The rulings of the Court upon these prayers present the questions of law open for review on this appeal. The evidence upon the part of the plaintiff as set out in the record tended to prove that the work contracted for was in fact completed and performed according to the special contract and was accepted by the defendant, that upon the completion of the work the defendant admitted it was a satisfactory job, accepted it, and accepted an order from the plaintiff to the Glore Supply Company for $400, payable on the 3rd day of January, 1910, for the boiler and radiators supplied for the plant, and in part payment of the contract price, for installing the heating plant.

The defendant offered evidence to show that the work was not done in a skillful manner, as agreed upon, and was never completed in accordance with the contract, that the plant did not answer the purpose for which it was installed. So far as the judgment in this case rests upon the facts as deduced from the evidence presented in the Court below, ³⁹ there is no question before us to be reviewed. The weight and conclusiveness of the evidence was the province of the Court below, under the submission of the parties, to decide. We cannot examine the facts in evidence, in the bill of exception, to ascertain whether the finding by the Court was or was not correct, or to determine whether the facts found were sufficient to support the judgment.

It is well settled, that where a case has been submitted to the decision of the Court upon law and fact, without the aid of a jury, this Court, on appeal, will only review the decision upon questions of law, if the record plainly discloses the points or questions of law raised and decided by the Court below. Tinges v. Moale, 25 Md. 486 ; Thomas v. Hunter, 29 Md. 406 ; New & Sons v. Taylor, 82 Md. 40 . We will now proceed to examine the questions of law raised and presented by' the appellant’s five prayers, which the reporter is requested to set out in the report of the case. The defendant’s first prayer was defective and was properly rejected, because it was based upon the theory that the plaintiff could not recover unless he could show that the work had been done in strict conformity with the contract, even though the work as performed and the material as supplied had been accepted by tbe defendant.

In Watchman v. Crook, 5 G. & J. 263 , it is said: If after tbe work is done though not pursuant to the contract, the party for whom it was done accepted it, it would seem right and proper that he should pay for it what it was worth. This, we