William F. Klingensmith, Inc. v. David H. Snell Landscape Contractor, Inc.

Smith, J., delivered the opinion of the Court. This is a dispute between a general contractor, appellant William F. Klingensmith, Inc. (Klingensmith), and its subcontractor, appellee David H. Snell Landscape Contractor, Inc. (Snell), on a job involving the construction of a playground at South Capitol and I Streets, S.W., in the District of Columbia. When Klingensmith paid Snell only $11,125.04 of a $16,500.00 contract price for landscaping, Snell sued for the balance of $5,374.96. Klingensmith brought a counterclaim contending that it had incurred liability to the government by virtue of non-performance by Snell of its contract with Klingensmith.

The trial judge (Shearin, J.) entered judgment in favor of Snell for the full amount it claimed. We shall remand the case without affirmance or reversal under Maryland Rule 871 for further proceedings on the issue of damages. ⁶⁵⁶ The contract between the parties was in the nature of a letter to Snell on Klingensmith’s printed form advising that it accepted Snell’s “estimate * * * to Furnish material and labor to complete all Plant Material and Planting Work on the Construction of Playground at Randall Recreation Center * * * in accordance with the plans and specifications therefor prepared by National Park Service, Dept, of the Interior Architect, which [Snell had] examined, namely Specs for Landscaping and Construction of Playgrounds at Randall Recreation Center dated 26 May 1967; Drawings NCR 69.484-61 sheets 1 thru 10; Addendums 1 thru 3.” Snell signed acknowledging receipt of that acceptance. On the subject of payment, the contract said: “Payments of the above contract price are to be made as follows: 90% of work satisfactorily completed on or before the 20th of the following month. Remaining 10% upon acceptance of government completion.” The contract had in it the comment that the “estimate [was] accepted with the express understanding that [Snell would] strictly comply with the terms and conditions [t] hereinafter set forth.” In its declaration Snell said the contract was not fully performed on its part, stating that one large red oak tree was not installed and that items which did not meet contract specifications were yet another large red oak tree, five dogwood trees and two hawthorn trees.

It claimed those items were “the difference between full and substantial performance by Plaintiff” of the contract. It is conceded that the contract of Klingensmith with the National Park Service was terminated. Snell claimed this termination made impossible further performance by it. Klingensmith filed a counterclaim based upon the failure of Snell to plant 29 red oaks and its “not performing in accordance with plans and specifications prepared by the National Park Service, Department of the Interior,” ⁶⁵⁷ as a result of which Klingensmith said it “was charged $9680.00 for the replacement and planting of dead trees, bushes and plants.” The counterclaim was dismissed.

Klingensmith sees four areas in which the trial court erred, (1) “when it found that the contract between the parties consisted of three documents not including the specifications between [Klingensmith] and the U. S. Government,” (2) “as a matter of law when it found that the reference in the agreement between the parties to the specifications for landscaping and construction of the playground * * * included only the contents of [Snell’s] Exhibit No. 2,” (3) “in finding that [Snell] substantially performed the contract in that it was based on numerical quantities and not value,” and (4) “when it found that there was no time limit within which the contract was to be performed.” Somewhat obliquely it adds a fifth point when it concludes its brief with a request “that the case be remanded in order that appellant may litigate its counterclaim based on all material and relevant evidence that was erroneously excluded.” We shall not consider such a fifth point, however, because nowhere in its brief does Klingensmith contend that the trial judge erred in dismissing the counterclaim at the end of the whole case and it did not print as a part of its record extract that portion of the proceedings. I and II Both of these points are concerned with the same subject, alleged error on the part of the trial judge in refusing to admit into evidence the contract between Klingensmith and the U. S. Government to which Snell was not a party. He found the contract between Klingensmith and Snell consisted of the letter we have mentioned and the items referred to in it which we also mentioned, all of which were in evidence. In support of its position that the trial court erred in making its finding as to what constituted the contract, Klingensmith cites Stewart v. American Bridge Co., 108 Md. 200 , 69 A. 708 (1908).

We do not see much comfort ⁶⁵⁸ for Klingensmith there. That was a controversy between the owner of a building and the contractor. One point of argument to our predecessors was the refusal of the trial court to admit into evidence the “general conditions” sent by the architects to persons who were invited to bid for the construction of the entire building. These related to a variety of subjects.

They set out with much particularity a great number of obligations to be assumed by the builder to the owner. The Court said: “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 bearing upon the subject matter of its contract with the defendants. It had agreed to furnish and erect all the cast iron, steel and ornamental iron work described in the contract in strict accordance with the plans and specifications prepared by Wyatt & Nolting, the architects, and to subject it, under the circumstances, to obligations of the nature specified in these ‘general conditions’ would be an unwarrantable extension of its duty under the contract. “* * * Our conclusion, that the ‘general conditions’ cannot be imported into the contract of June 23rd, 1904, is supported by the principle of the decision in the case of The Baltimore & Ohio Railroad Company v. Stewart, 79 Md. 487 .” Id. at 214-15.

In Baltimore & O.R.R. v. Stewart, 79 Md. 487 , 29 A. 964 (1894), cited in Stewart, Stewart had entered into a contract with a railroad company for building a bridge. The memorandum said, “Baltimore and Ohio specifications to govern.” In the railroad’s regular form of construction contract there was a provision that the company might “at any time, suspend the execution of, or ⁶⁵⁹ annul, the contract, upon giving_days’ notice, without being liable for any loss or damage to the contractors.” Stewart had signed such a contract with the railroad some five years before. The company contended that it was entitled to cancel Stewart’s contract. Chief Judge Robinson said for our predecessors: “It can hardly be contended that any such right on the part of the defendant can be implied from the words ‘Baltimore and Ohio specifications to govern.’ The term ‘specifications’ as thus used in contracts of this kind, ordinarily means a detailed and particular account of the structure to be built, including the manner of its construction, and the materials to be used.

And the words ‘Baltimore and Ohio specifications to govern’ would in themselves be construed as meaning that the parties to the contract were to be governed, as to such matters, by the specifications to be found in the regular form of construction contracts used by that company. Nor is it pretended there was any mutual agreement or understanding, outside of the written contract in regard to this point.” Id. at 497. In further discussing the matter he pointed out that the chief engineer of the railroad company said that Stewart was familiar with the form of contract, that the regular form of contract was recognized by the engineer and he assumed it was recognized by Stewart “in their dealings during the progress of the work.” The Court said: “Col. Douglas [the chief engineer] no doubt meant by the words ‘Baltimore and Ohio specifications to govern,’ not only the specifications, but all the conditions of the regular form of the contract used by the company, so far as applicable, and he assumed that the plaintiffs so understood these words.

The latter, however, are in no manner bound by the assumptions or ⁶⁶⁰ belief of the witness. They are bound by the contract itself, construed by the same rules of law which govern all other contracts. * * * So, it does not seem to us that there was any evidence from which the jury could find that by the words ‘Baltimore and Ohio specifications to govern,’ that the parties meant to import into the contract the reservation, to be found in the regular construction contracts of the company, of the right to annul the contract at its pleasure, without incurring any liability to the plaintiffs.” Id. at 498-99. There was no testimony presented in this case from any source indicating that the parties were to be governed by the entire contract between Klingensmith and the government. The attempt to put the government contract into evidence came through a witness who was an employee of the government and had no connection with Klingensmith.

The contract between Klingensmith and Snell does not by its terms state that the entire contract is made a part of the contract between Klingensmith and Snell. Essentially, what was here required was a determination as to what constituted the contract between the parties. Cf. Jones v. Calvin B. Taylor Banking Co., 253 Md. 430, 439 , 253 A. 2d 742 (1969).

There clearly was evidence from which the trial judge could determine, as he did determine, that the contract between the parties consisted only of the memorandum to which we have previously made reference and those parts of the government contract specifically mentioned in that memorandum. We cannot say that he was in error. Therefore, the contentions of Klingensmith on this point must fall. Klingensmith points out that under its contract with Snell work was to be completed “to the satisfaction of the owner and said Architect.” In the court’s opinion it is stated: “The Plaintiff has freely conceded and said during his own case that certain specifications ⁶⁶¹ of the contract had not been fully complied with; that certain of the materials, namely, one large red oak tree, did not meet the contract specifications because its top was broken out; one large red oak was not installed by the Plaintiff; that five dogwood trees did not meet the contract specifications because they were too small and two hawthorn trees did not meet the contract specifications because they were too small.” Klingensmith then quotes the next succeeding two paragraphs of the opinion omitting the part we have placed in brackets and emphasizing the italicized portion: “It appears further from the evidence that there came a time in June of 1968 when there was a purported final inspection of the work done by the Plaintiff and, following that, a demand by the government and by the Defendant that the corrective work which was conceded to be required by the contract (and other work not conceded to be required by the contract) be done prior to October 1, 1968. “[In the contract between the parties to this proceeding there is no time limitation within which the work was contracted to be performed.] The contention of the Defendant in this case that the Plaintiff had bound itself to perform when and as required by the contract officer involved on the government’s behalf is not borne out by the facts or by the law.” Klingensmith then cites Maryland cases having to do with inspection and from that attempts to make an argument that these are grounds for admission of the contract between Klingensmith and the government, stating that “under the agreement, the Government’s specifications in their entirety were binding upon [Snell] and it was error to admit only a part of them.

Both by incor ⁶⁶² poration into the agreement and by submitting himself to the satisfaction of the Government who relied on their specification in determining acceptance, [Snell] was bound by those deleted specifications, and they should