Williams v. E. J. Fredlock Mfg., Etc., Co.

Fowler, J,, delivered the opinion of the Court. This is an action of assumpsit to recover for work and materials furnished in the erection of a dam by the plaintiff for defendant in Garrett County. It appears from the evidence in the record offered by the plaintiff that the plaintiff and defendant made a parol contract for work to be done and materials to be furnished by the former ; that no specified price was agreed upon ; that the defendant was to furnish the rock; that the rock so furnished was scaly and not suitable for the purpose, and that the plaintiff never agreed that the dam would be water tight or water proof and did not guarantee the same ; that it was a good job, as good as could be made and was amply sufficient to hold water. It was further in evidence that the work was done in a good and workmanlike manner, the best that was possible to do with the rock that was furnished by the defendant; that the mason who was employed by the plaintiff to do the work was instructed by the plaintiff to build the dam nine feet high, but that after it was nearly completed, the defendant with the permission of the plaintiff directed that the dam should be made thirteen feet high or four feet higher than was calculated when the wall was started, and that a dam thirteen feet high should be built thicker and stronger than one nine feet high ;”that the defendant was so informed and he replied “ that dam is strong ¹¹⁰ enough to hold all the water in Garrett County.” It was proved by the plaintiff that the claim sued for in this case included not only work and materials furnished for the dam, but work and materials outside and beyond those furnished for the dam, and it was admitted that these charges as well as the whole account was a correct copy from'the books of the plaintiff The defendant testified as follows : That in June, 1897, he employed the plaintiff to build, among other work for him, a dam of certain dimensions as agreed upon, for the purpose of a fish and ice dam; that he, the plaintiff, was to furnish the stone for the work, that it was furnished under the direction of the agent of the plaintiff; that he never interfered with the work, except to insist that the dam should be built higher; that in July, 1897, when the dam was claimed to have been completed by the plaintiff, it leaked, and in the opinion of the defendant, was insufficient to hold and retain water as it should and would have done if constructed in a workmanlike manner ; that he notified plaintiff of the trouble and that the plaintiff having failed to stop the dam from leaking, the defendant employed other workmen, who tore out the plaintiff’s work and rebuilt the dam; that the dam was never dry; that none of the fish ever escaped, nor did he lose any by reason of the leakage; that the dam was in existence one winter and that he filled his ice-house with ice cut from it that winter and that he had torn it down after this suit was instituted,