United Surety Co. v. Summers

¹⁰⁴ Pearce, J., delivered the opinion of the Court. This is an action upon a bond executed by the United Surety Company, the defendant below, to Clinton Summers, the plaintiff below, given to secure the faithful performance by Engelbert C. Lawrence of a certain agreement in writing between him and said Summers, under seal, for the furnishing and erection of all the re-inforced concrete work in and about a certain building then in course of erection for said Summers upon the northeast corner of Eutaw street and Cider alley in the City of Baltimore, “said building to have a frontage of forty-nine feet and ten inches on Eutaw street and one hundred and three feet on Cider alley.” The declaration contained five counts. The first count set out in full the said agreement between Summers and Lawrence, dated May 17th, 1906, which is in the usual form of such contracts adopted in Baltimore, and it also alleged that on the same date the said Lawrence, for the purpose of ’securing the due performance of his said agreement, delivered to said Summers a bond in the penalty of $30,000, executed jointly by himself and said Surety Company, and then set out the same in the precise words and figures thereof. This was signed and sealed by the Surety Company, and was signed, but not sealed by said Lawrence.

The first count then further averred that “said Lawrence entered upon the performance of said contract, and did work and furnished materials in and about said building, but did not well and truly keep and perform his said contract, but on the contrary broke the same in the particulars following, to wit, that he did not do his work in a good, workmanlike, substantial and efficient manner, nor did he furnish good and satisfactory material in and upon said building, and that the work and materials, so far as the same were furnished by him, were not satisfactory to J. H. Walsh & Bro. the architects and builders named in said contract, to whom, by the express terms of said contract, said work and materials were to be satisfactory, to the great damage of the plaintiff, whereby a right of action hath accrued to the plaintiff against the ¹⁰⁵ defendant upon the said bond to recover in respect of said damage.” The second count, “for a further breach of said bond,” alleged that after entering upon the performance of said contract, said Lawrence “wrongfully and wilfully abandoned the performance of said contract” whereby a right of action had" accrued upon said bond. The third count, “for a further breach of said bond,” alleged that the work specified in said contract, and in the accompanying specifications forming a part of said contract, was not completed and finished in seventy working days as stipulated in said contract, “whereby the plaintiff became entitled by way of liquidated damages to the sum of $50 for each and every day in excess of seventy working days (the said number of days so in excess amounting to 250 days'), which said liquidated damages the said Lawrence had failed and refused to pay,” whereby a right of action had accrued upon said bond. The fourth count, “for a further breach of said bond,” alleged that after said Lawrence abandoned said contract, notice thereof was thereupon given to said Surety Company by the plaintiff by registered letter, as required by the terms of said bond, and that thereupon the defendant assumed said contract and sublet the same for completon, but did not complete the same and left the same unfinished, whereby a right of action had accrued upon said bond. The fifth count, “for a further breach of said bond,” alleged that the defendant after assuming said -contract as alleged in the fourth count, proceeded in the completion thereof in an unskilful and unworkmanlike manner, using inadequate and insufficient materials in a negligent way, and unreasonably delayed the work, so that it was not done in accordance with the specifications nor within the stipulated time, whereby a right of action had accrued upon said bond.

The declaration then alleged that as to each of said five counts, and each and all of the breaches of said bond therein mentioned, the plaintiff had performed all the conditions re ¹⁰⁶ quired of Mm in said contract and bond, and that by reason of said breaches of said contract by Lawrence', and the breaches of said bond by the defendant, a right of action had accrued upon said bond to recover in respect of each and every breach set out in said five counts, and claimed $30,000 damages. The defendant demurred to the declaration and to every count thereof, and this demurrer was overruled. We have fully outlined the structure of every count in this declaration, in order that the demurrer might be the better understood when considered. A bill of particular’s was then demanded and furnished, in which was itemized all the work and materials done and furnished to make the building conform to the contract, with the date of each item.

The defendant then pleaded sixteen pleas, some alleging breaches by the plaintiff of the covenants on his part in said contract, and of the conditions of the bond imposing obligations upon him, and others denying the breaches of said contract by Lawrence, and of said bond by the defendant, complained of in the declaration. Upon some of these pleas the plaintiff joined issue, and replied to others, and the defendant rejoining, joined issue upon these replications. The case went to trial before a jury, and a verdict was rendered for the plaintiff for $5,088.06, and! judgment was entered thereon in proper form, from which both parties have appealed. The plaintiff took three exceptions, two to the rulings of the Court upon motions to strike out certain testimony admitted subject to exception, and one to the rulings on the prayers; and the defendant also took three exceptions, two to rulings upon the evidence and one to the rulings on the prayers.

The plaintiff offered two prayers. The first, in substance instructed the jury that if they found certain enumerated facts, the plaintiff was entitled to recover such sum as the jury should find to be reasonably necessary to be expended in strengthening the first and second floors, and the back stair ¹⁰⁷ way; in temporarily covering and protecting the collapsed roof, and permanently restoring the same to conform to the contract; and also to make the first and second floors as completely fireproof as they would have been if the contract had been fully performed in every respect so far as the said first and second floors were concerned. This prayer was granted. The second prayer asked an instruction that the plaintiff should recover, by way of additional damages, the sum of $50 for every day in excess of seventy working days occupied by Lawrence and the defendant upon said work, excluding from said seventy days all other working days during which the jury should find the work was delayed by the architects and builders of the plaintiff, from the time of the commencement of the work down to the time when the jury found the plaintiff took possession of the building, and this prayer was refused.

We shall request the reporter to set these out in full. The defendant offered twenty-eight prayers. The 1st, 2nd, 3rd, 4th, 5th, 6th.and 7th were abandoned in this Court, having been refused below, and the 11th, 12th, 20th, 21st, 22d, 23rd, 26th, 27th and 28th were also refused. The 8th, 9th, 10th, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 24th and 25th were granted.

There were some special exceptions by the plaintiff to the granting of some of the defendant’s prayers which will be noticed hereafter. The first question arises upon the demurrer to the declaration. The reference of the defendant in this Court to this question is contained in the following extract from its brief: “There are what purport to be five counts in the declaration, but in reality, there is one count only, and that is the first count. The remaining counts should have been held bad on the demurrer which was interposed.

The first count is .complete in itself, but the damages recoverable thereunder, are in express terms limited to such as arose for defective materials and workmanship during the time Lawrence was on the job down to Aug. 11, 1906. We take it to be clear that ¹⁰⁸ the remaining counts are fatally defective and should be tested as though the first count were bad on demurrer. Ueither count subsequent to the first, states in itself a cause of action.” ■ This does not clearly point to any specific defects, and the only inference suggested is that the contract and bond should have been set out in each count. The plaintiff’s brief however discusses some grounds taken by the defendant in the Court below which will be briefly referred to.

First however we will notice the plaintiff’s contention that this demurrer is joint and not several, and must'therefore be overruled if there is one good count, as we understand the defendant to concede there is, in the extract from his brief above. Such is the undoubted rule of pleading, but the exact language of this demurrer is, “to the plaintiff’s declaration and to every count thereof.” We should hold this to be several, as well as joint, if there were no express authority therefor, but the precise question has been decided in Sanford v. Geddes, 13 Ill. 329 , in an opinion by Judge Lymaw Tbumbull, one of the most distinguished Judges of that State. The language of that demurrer was as follows: “The said several counts of the said declaration are not sufficient in law, nor are either of said counts sufficient in law.” The Court said: “Had separate demurrers been written out to each count it cannot be denied that some of them might have been sustained, and others overruled, as the counts, on examination, were found to be either good or bad. Why then should not one general demurrer, made several to each of the counts, be treated in the same way ?

We regard it as a commendable practice to avoid encumbering the record with useless papers, and can see no good reason why a party should hot be permitted to make his demurrer several to each count, without writing out as many formal separate demurrers as there are counts in the declaration.” But we are of opinion each of the counts in the declaration before us is good. We are informed that it was objected below to the first count that it does not contain the specifications and drawings referred to in the contract. It was not neces ¹⁰⁹ sary it should eoutaiu them. It was uot even necessary to set out the contract in hcec verba, or to set out the bond, or file a copy of it. 1st Sup.

Enc. Pl. & Pr., 590. Bank of Timmonsville v. Fidelity Co., 120 Fed. Rep. 315; Armstrong v. Robinson, 5 G. & J. 412 , approved in Neale v. Fowler, 31 Md. 157 . In reference to the objection that none of the remaining counts in themselves states a cause of action, it will be sufficient to cite Griswold v. Ins.

Co., 3 Cowen, 97, in which it was said that: “In declaring upon a contract which is sufficiently stated in the first count, it need not be repeated in subsequent counts in the same declaration; it is enough to declare it is the same as set forth in the 1st count.” As to the second count we are informed it was contended below that it should have negatived matters of defeasance afterwards set up in some of the pleas filed. But the authorities are otherwise. Booth v. Comegys, Minor, (Ala.) 210; Mix v. Page, 14 Conn. 329 ; Mason v. Montgomery, Wright (Ohio), 722, in which it was said that a party relying upon new matter must himself affirmatively bring it forward in pleading, and that a demurrer will not introduce it upon the record; also Romer v. Conter, 53 Minn. 171 , where the rule was applied to a suit on a bond given to secure the performance of a building contract. It was also objected below to the third count that-it did not designate with sufficient particularity the 250 days for which liquidated damages were claimed, and to the fourth that it did not state the date when Lawrence abandoned the contract, and when notice thereof was given to the defendant.

But these we think were matters of evidence. 1st Poe’s Pleading, sec. 550; Ruby v. State, 55 Md. 488 . We are told it was contended below that the fifth count was bad for duplicity, in that it set forth two distinct causes of action. This, if true would be ground of demurrer. Milske v. Steiner, 103 Md. 250 .

But we think only a single cause of action is set forth in this count, viz, the failure to complete the work properly within the prescribed time. Mr. Chitty, Pleading, Vol. 1, page 251, says: “Several distinct facts may ¹¹⁰ be comprised in the same pleading, if the different facts form together but one connected proposition;” and this is said to be the rule in 7th Enc. Pl. & Pr., 238, citing Wolfe v. Beecher Mfg. Co., 47 Conn. 233 , where it is said: “An enumeration of various kinds of damage resulting from a single act, will not render the pleading duplicitous.” We do not think this count is open to that objection, and we are of opinion that the demurrer was properly overruled.

The defendant’s first exception was to the refusal to admit in evidence a report made by Mr. Keyser, an engineer, of an inspection made by him of this building in March, 1907. There was no authentication whatever of this paper. Wigmore in his work on Evidence, Vol. 3, sec. 2130, says: “A writing purporting to be of a certain authorship cannot go to the jury as possibly genuine, merely on the strength of this purport; there must be some evidence of the genuineness (or execution) of it.” In St. Louis Loan Co. v. Yantis, 173 Ill. 321 , where a printed statement of the number of shares of instalment stock issued was offered in evidence, the Court said: “In no way authenticated, we are aware of no rule of evidence that would justify its consideration by the Court.” Moreover, that paper was nothing more than what Mr. Keyser said upon the subject. It was an unsworn statement, and no more admissible than his oral statement to the same effect.

Even if supported by a mere voluntary affidavit, it would not have been raised above the grade of hearsay. Patterson v. Md. Ins. Co., 3 H. & J. 71 . There was no error in this ruling.

The defendant’s second exception was to the refusal of the Court to strike out the testimony of the plaintiff Summers with reference to the provisions of the contract for the payment of $50 per day, in case of delay. This will be considered in connection with the prayers on both sides relating to liquidated damages. The plaintiff’s first bill of exceptions was to the refusal of the Court to strike out the blue prints marked “Defendant’s Exhibits A., A 2, B, C, & D, and each of them,” which had been admitted subject to exception, after having been previ ¹¹¹ ously twice refused admission. The plaintiff practically admitted in his brief that their admission worked no injury to him, and we need only say that we think they were properly admitted.

Plaintiff’s second exception was to the ruling of the Court in striking out (1) Summers’ testimony that he could have rented his old building from January 1, 1901, if he had gotten possession of the new building before that time, and Martien’s testimony as to its rental value; and (2) Martien’s testimony as to the rental value of the new building. We think the ruling as to the old building was correct, because he had leased the old building for three years ending Eebruary 29th, 1908, long before he contracted with Lawrence for the new building, and the rental value of the old building was not in issue in the case. The rental value of the new building stands upon different ground. The plaintiff was entitled either to liquidated damages, if the true construction of the contract provided for such, or if it did not, one element of damage was the loss of rental value of the new building while he was kept out of it by the fault of Lawrence or of the defendant.

It was inconsistent, as we think, for the Court to rule as it did in this exception, that evidence of that rental value could not be received, and then to rule as it did on the prayers that liquidated damages could not be recovered. Central Trust Co. v. Arctic Machine Co., 77 Md. 235. It will be seen when we come to consider the prayers that we think the error was in that ruling, and not in this exception. Eefore taking up the prayers it will be necessary to refer to certain provisions of the contract and specifications.

Clause 1 of the contract requires the building to have a frontage of 49 feet 10 inches, conformably to the drawings and specifications thereto annexed. Clause 2 requires the work to be' satisfactory to the owners, architects and builders. Clause 3 that the specifications and drawings shall co-operate. Clause 9 that in case the work is not completed within ^{10 112} working days, the contractor shall pay. the owner $50 for every day in excess of 70 days occupied in the work.

Clause 10 that in case of completion in less than 70 working days the owner shall pay the contractor $50 for every day of said 70 days not occupied in said work. Clause 11 that the contractor shall give bond in $30,000 for the faithful performance of every provision of said contract. Clause 13, for payment of contract price in certain instalments at specified times, amormting to $10,900, and the balance $2,725, upon satisfactory completion of the whole work. There has been paid $9,300, and there remains unpaid $4,325, one of the questions now in dispute being whether this sum is now due and demandable by the surety in this case.

The specifications require “all work and material to comply in every respect with the building laws of the City of Baltimore and with the directions of the Inspector of Buildings, all of which are to be considered a part of the specifications and contract.” The drawings annexed to the contract are designated in the specifications, and were offered in evidence by the plaintiff below, but by agreement of counsel neither these drawings, nor those offered by the defendant and admitted (“A, A 2, B, C, & D”) are embraced in the record, the agreement of counsel providing that any of these drawings might be used by either party at the hearing in this Court, and the drawings offered by the defendant as above designated were so used. The specifications contain this provision: “NTame separate price for construction of north side of building on reinforced concrete columns and girders in place of wall sufficient to add additional 15 feet in width lo present building at any time;, to have curtain wall of brick.” Here we may pause to observe that these specifications do not designate the location of this north girder otherwise than-by describing it as “in place of north wall.” ¹¹³ The curtain wall mentioned in the specifications is a 13- ■ inch wall carrying no weight, and designed only to close the north side of the building, all the weight being carried on the columns, and the north girder, which takes the place of the wall. The specifications provided that the first and fifth floors should carry 115 pounds, and the second, third and fourth floors, 225 pounds to the square foot, “dll'to tie with safety factor of four,” which the testimony shows means that the floor should not break under less than four times the weight it is required to carry. We will now turn to the prayers, and will take up first the defendant’s twenty-seventh prayer, which seeks to discharge the surety from any liability on the bond on the ground of a material alteration in the plans and specifications and construction of the concrete work by reason of the alleged change in the location of the north girder.

It will be seen that through some error in preparing the record or some possible inadvertence in drawing the prayer, its language is very confused and difficult to-understand, but we will assume that the jury understood it as presenting the proposition we have stated. The plaintiff specially excepted to this prayer upon the ground that there was no evidence legally sufficient to show that the original contractor moved this girder from the position indicated in the plans and specifications, or that because of said removal the plaintiff gained 200 square feet of floor space, or that the cost of said removal was about $200, and that the same was not included in the original contract, plans and specifications. This exception was sustained and the prayer was refused. There was evidence showing that the architects required Lawrence to change the location of this girder from the centre of the columns where he had begun its construction, to the north side of the columns, and from the position apparently indicated for it, by the line drawn through the centre of the columns on the drawings, B. & C. prepared by the contractor, after the execution of the contract and the