Walsh v. Jenvey

Boyd, J., dissented, and delivered the following opinion : I noted my dissent in this case because I was satisfied the appellant had not been injured by the rulings of the ²⁴⁶ Court below, although I agree with the other Judges who sat in all other respects. The difference between the balance due on the principal, according to the contract prices, and the amount of the verdict is easily accounted for if the interest is calculated. The jury had the right to allow interest and as the verdict was for an amount not in excess of the balance due, as fixed by the prices named in the contract and the interest thereon, the appellant was not injured, and, therefore, in my opinion, was not entitled to a reversal of the judgment. (Filed March 31st, 1897).

Fowler, J., delivered the opinion of the Court. This was an action on the common counts for work done and materials furnished. The defendant employed the plaintiff to rebind and clean his law books, which had been damaged by fire and water. Both parties agree there was a special contract, but they differ as to its terms.

In the view we have taken this difference is not material, for it appears from the testimony of both parties that the work contracted for was in fact completed and that the books were delivered to the defendant. The defence set up by the defendant is that the special contract not having been fully executed the plaintiff cannot recover on the common counts. This is undoubtedly true as a general proposition, but we do not think it has any application to the facts of this case. For it is and must be conceded that the contract has been completed because the defendant admits that he has in his possession the books which were bound and cleaned by the plaintiff under the special contract, and the complaint is, not that the work has not been fully done, but that it has not been done in a skillful manner as agreed.

The plaintiff on the other hand offered evidence to show that the work was done in entire accordance with the contract, and that the books had been delivered to and accepted by the defendant. This suit was brought, therefore, upon the theory, which is amply supported by the plaintiff’s testimony, which, however, is contradicted by that of the defendant only so far as relates to the character of the work. Having performed his part of the work, and the defendant having accepted the books, the plaintiff unquestionably pursued a proper course in relying on the common counts. Ridgeley v. Crandall, 4 Md. 435 .

The contract was before the jury, and if they believed from the evidence that the work was skillfully done as thereby provided they could have properly allowed the contract price. And to this effect they were instructed by the plaintiff’s first prayer. In City and Suburban Ry. Co. v. Basskor, 82 Md. 405 , in which there was, as here, a special contract and a suit on the common counts, it was said: “ The ²⁴⁴ contract was offered in evidence without objection, and being properly before them, the jury had a right to consider it as part of the evidence in the case.” And it was accordingly held that the compensation fixed by the contract was a proper measure of damages.

To the same effect is Appleman v. Michael, 43 Md. 273 . It was also objected that this and the other two prayers of the plaintiff assume the fact of acceptance by the defendant. But this question is not properly before us, inasmuch as the special exception on which it must