Abbott v. Gatch

13 Md. 314, 1859 Md. LEXIS 31

• Court: Court of Appeals of Maryland
• Decided: April 28, 1859
• Status: Published

Opinion

Tuck, J.,

delivered the opinion of this court.

The plaintiff, the present appellee, contracted to put up a mill guarantied to grind the best wheat flour, with the necessary bolters, elevator and rubber, for the sum of five thousand dollars. In the contract there is this clause: “No extra charges to be made unless a written agreement be made and attached to the contract.” In the progress of the work, alterations were made, and portions of the mill put in, as the plaintiff contends, not embraced by the terms of the contract, without the parties availing themselves of the above provision, and one of the questions in the cause is, can the plaintiff demand additional compensation beyond the sum stipulated for the entire work? The claim is placed on the ground, that the defendant interfered with the work by directing or authorizing these departures from the original design, and in some instances, against the opinion of the plaintiff. Whether these circumstances can aid him must depend on the object of the parties in inserting this clause, and the interpretation we are to put upon the entire agreement.

It is manifest, that the object of such provisions in building contracts is certainly as to the terms on which the work is to be done, in. order that the parties may know how much one is to pay and the other to receive for such changes and alterations as maybe made. Neither has a right to change the plans without the other’s consent; but, as this may be done by agreement, when alterations are specified in writing and attached to, tfhey become parts of, the original contract, and the-builder may recover for such work according to the agreement in that behalf. The present plaintiff undertook to erect a mill, a work requiring practical knowledge and skill in that branch of the mechanic arts, on which it is to be presumed, the defendant relied in giving him the contract.- It was his right, as well as duty, to determine what was necessary to complete such a mill as he liad contracted to put, up; and as to all matters not mentioned in the agreement, or laid down on the plans, he was solely responsible. He was under no obligation to receive suggestions from Abbott; on the contrary, if he deemed them unsuitable or impracticable, or likely to cause increased expense, he should have resorted to the contract, as containing all that he was required to perform, and insisted on having the additional work brought within its terms, as well for his own protection, as to prevent misapprehension on the other side.The words in question protected Abbott against extra charges.They cannot mean that no extra charge was to be made for what the contract required, because the very office of that was to define what was to be done and to fix the price. We take the true construction to be, that there was to be no charge for extra work, that is, for any work beyond that stated in the contract, no matter what it might be, whether alterations in the plan or mode of doing the work, or additions or improvements in and about the completion of the mill, unless reduced to writing and attached. It makes no difference if the extra work was ordered by the owner, provided it was on the mill. As we have said, the builder need not accede to the owner’s views; he may refuse, or he may assent, under the protection' afforded by this clause. If extra work be done without it the right to additional compensation is waived. Any other interpretation of such words would make them valueless to the parties. The appellee’s view, if adopted,-would deny to the-owner the privilege of suggesting any, the most trivial, alteration of the work, without incurring the risk of opening the-whole contract; then the written agreement would be substituted by a mere quantum meruit claim for work and labor, to-be afterwards adjusted upon uncertain oral testimony. And,in many cases, his mere presence on the premises might subject him to extra charges, on the ground of acquiescence in-alterations made by the builder, when it might well be supposed there was to be no additional charge, because not previously attached to the contract. 5 G. & J., 263, 264. 6 H. & J., 89. 9 Barr., 245. We cannot distinguish this agreement from that passed upon in the case of Baltimore Cemetery Co. vs. Coburn, 7 Md. Rep., 202, The same considerations apply to both. To hold a party liable in the face of such a stipulation, would be to turn his plain words into something that he had not assented to. In 9 Barr., 245, extra work was not. allowed for, though done with the owners’’ knowledge, and without objection, and afterwards accepted by them. There, the contract did not require the agreement for extra work to be in writing, but the terms were very explicit,viz: “At any time during the progress of the building, the committee reserves the right to direct any alteration or variation from tire original plan, so as not to vary therefrom in any very essential manner, so as to cause any material extra expense to the building; but any alteration suggested by them shall be made, and the expense, if any, shall be agreed upon at the time; but no extras shall be allowed under any pretence whatever.” Extra work was done with the knowledge of tire committee, who made no objection, and some of them approved of the plaintiff’s acts. The court held, that in the face of such an agreement, affording ample protection to both parties, the action could be maintained only, “by clear and satisfactory evidence of a new, distinct and independent contract, authorizing the alterations, and expressly agreeing to pay for them a certain fixed price, or what they may be reasonably worth,” and that if the contract was to be thrown open, because of the presence of the committee while the work was going on, without objection to the changes, though often conversing about them, and because of their acceptance of the work, it would be useless to pot such agreements in writing. This may appear to be a harsh construction, where the owner has received the benefit of the work; but the law is well settled, that contracts are to be interpreted and enforced, according to the fair import of their terms, without reference to the hardships that may fail on the parties. Wagner vs. White, 4 H. & J., 566. 6 H. & J., 143. Dorsey vs. Smith, 7 H. & J., 345. If persons voluntarily express themselves in writing, they must be bound by the language employed. McElderry vs. Shipley, 2 Md. Rep., 25. The law presumes, that they understand the import of their own contracts, and to have entered into them with knowledge of their mutual rights and obligations. And if, in a case like this, one party omits to have the changes reduced to writing, they must, in view of the rights of the other, be deemed to have been made with reference to the contract price, unless there be proof of an express waiver of that clause of the contract, or a promise to pay for the extra work. Hort vs. Norton, 1 McCord, 22. Wilmot vs. Smith, 3 C. & P., 453. 7 H. & J., 345, 363. 1 Gill, 311. 5 Md. Rep., 121. 9 Pick., 298.

it follows from these views of the agreement, that the comt below erred in disallowing the defendant’s objection to the evidence of work claimed as extra or additional, and also in granting the plaintiff’s 5th, 6th and 7th prayers; and this ruling renders it unnecessary to pass upon the 1st, 2nd, 3rd, 4th and 7th prayers of the defendant, relating to the same points.

The defendant having made a claim, by way of reduction of damages, fop losses sustained by not having had the use of the mill, according to the contract, prayers were offered on both sides on that subject, which we are now to consider. In many .cases a defendant may recoup for damages, resulting from the plaintiff’s failure to execute his contract. Formerly a cross-action was deemed to be the proper remedy; but now the law js settled, that the matter may be urged by way of defence. We do not say, that a defendant can always recoup where he could sue as plaintiff’, but that the principle on which it has been allowed will apply here. 2 Parsons on Cont., 246. Sedgwick, Ch., 17. Beall vs. Pearre, 12 Md. Rep., 550.

Where unliquidated damages are claimed, whether by the plaintiff, as his cause of action, or by the defendant, in reduction of the verdict, it js very difficult to apply a rule that will do full justice to the parties; the most that courts can accomplish is to approximate that result, with the limited and imperfect aids that the parties may furpish. As a general proposition, one who has so suffered, is entitled to be placed as nearly ps money can do it, in the same plight as if the contract had been faithfully executed. Rut there are many transactions in which this is wholly impracticable, because of the impossibility of determining, after the occurrence, what might have happened under a different state of things. The books furpish numerous examples, in which trials at law have come far short of meeting the demands of justice, though the result could not have been different in the particular cases without Jetting in a most loose and uncertain measure of damages, and very dangerous, because liable to be abused. The law, for the purpose of preventing wrong and injustice, and to make compensation as far as regard for truth and certainty would allow, lias laid down certain rules for the government of courts and juries, and among these we find that speculative profits are too remote to be included in the estimóte, because they are not presumed to have been contemplated by the parties at the time of malting the contract. But such damages as are incidental to and caused by the breach, and may be said to flow reasonably and naturally from such breach, and are not accidental or consequential losses, will be allowed; and whether they are of the one character or the other must, depend on the nature of the transaction, and, in cases of building contracts, on the objects and uses for which the structure may be designed. The reason stated for discarding expected profits, as an element in the estimation of the loss, is, that the party charged is not presumed to have made his contract with reference to such results, unless the special circumstances are communicated to him at the time; but where they are such as he ought to have contemplated, as a reasonable and probable result of his breach, they will affect the measure of damages in favor of the complaining party. Applying these rules, there is no difficulty in disposing of the prayers under consideration. Here, the contract was to build and put up a mill for grinding flour, by a named day, which was of the essence of the agreement. Watchman vs. Crook, 5 G. & J., 239. It is a necessary presumption, that the plaintiff knew that his work was intended for use and profit, by rent or otherwise, and that in contracting to complete the mill by a certain day, he acted with reference to these purposes as important to the defendant, and that he contemplated the loss of such profit as a reasonable and probable result of a failure on his part. He is thereby brought, within the principles we have stated, as fairly deducibie from adjudged cases of the highest authority.

But the inquiry here is, what standard of value for the loss of time shall we apply? We cannot adopt any estimate of profits that Abbott might have realized from working the mill, because these were merely speculative, depending on the quantity of flour it might grind, the fluctuations of the market, as to prices of flour and grain, and the remote contingencies of Jiis being able to procure wheat, labor and fuel, as well as the continuance of the mill in running order, free from accidents and loss of timo from other ctfuses. Nor can we charge the complainant on the basis of the contract, between Abbott and Warden, for the employment of the mill, because, it was not for a rent certain, but depending on most of the contingencies above mentioned, and we are not to presume, that Gatch made his contract in contemplation of it, as a measure of damage resulting from his failure to complete the mill by the time fixed in the contract. It makes no difference, that Warden proved that his firm were ready to have gone on with, and fulfilled their, contract, if the mill had been finished on the 15th of June, because we must deal with the subject, as of the time of the contract between the parties to this suit. In some cases, the profit that would have been derived from another contract existing at the making of the one in suit,' may be allowed. An example is furnished in the case of Masterton vs. Mayor of Brooklyn, 7 Hill., 62, where the distinction is clearly stated by Nelson, Ch. J., whose opinion, as well as 2 Kent’s Com., 480, note, and Sedgwick, 76, are quoted, in the most recent English works on the subject of damages, as having stated the law on correct principles, Mayne on Damages, ch. 2. Powell on Evidence, ch. 21. 1 Exch., 855. 2 Parson’s on Cont., 458, et seq.

Considering the uncertainties attending the milling business, and the difficulty of defining a safer guide for juries, we are of opinion, that a fair rent is the most reasonable standard of the defendant’s loss by reason of the plaintiff’s failure to complete the mill. This we take to be consistent with well established principles, and the doctrine recognized in this court, in a case where the measure of damages for loss of the use of a mill was a point in contest. Smith vs. Middlekauff, 1 Md. Rep., 329. Though the courts in Vermont appear to allow evidence of what the mill could have earned. 18 Verm., 620.

We think, therefore, the court was right in granting the plaintiff’s second prayer. The 5th and 6th prayers of the defendant also relate to his claim for damages. They were properly refused, because the fifth claimed damages, by way of reduction, for loss of the use of the mill from the time originally agreed upon for its completion, when the evidence shows the time was extended as the necessary consequence of the defendant’s agreement with Millholland, by which the latter was allowed until the 15ih of June for supplying portions of the machinery, and it would require several weeks after tlieir delivery to complete the mill. Me • was claiming damages for delay that he had himself caused. And for this reason, also, the 3rd and 4th prayers of the plaintiff were properly granted. There was no evidence of the value of the mill to authorize the jury to reduce the verdict, by an allowance of rent, for the loss of time;, the defendant’s 6th prayer was, therefore, well refused. The exception to the plaintiff’s eighth prayer was abandoned at' the bar.

The remaining question arises on the defendant’s motion’ for a nonpros., which,-in view of its importance, we shall decide without reference to the time at which it was made.

The 10th and 11th sections of the 4th article of the Constitution, define the jurisdiction of the Court of Common Pleas- and of the Superior Court. They are not to be taken as an intimation, that each court was peculiarly adapted to the class' of cases specially confided to it, but as showing a plain design to facilitate and promote justice by a division of business, and-this was to be insured by preventing the accumulation of suits in the Superior Court, at the option of plaintiffs. The jurisdiction is made to depend on the amount of the “debt or damage claimed,” and “in case any plaintiff shall recover less than the sum of five hundred dollars, he shall be allowed-dr adjudged to pay costs, in the discretion of the court.” The Judiciary act of 1-789 gives jurisdiction where “the matter in dispute exceeds the sum or value of five hundred dollars, eL elusive of costs, to be made to appear to the satisfaction of the court.” Under this act, it has uniformly been held, that the damages claimed in the writ is the test of jurisdiction, even iii cases where the demand was on a note for less than five hundred dollars; if the verdict be for less the plaintiff does not recover costs, but, at the discretion of the court, may be adjudged to pay costs. 8 Cranch, 229. 3 McLean, 91. 2 Wash., 463; 16 Peters, 97. If the point before us rested merely on-the words, “debt or damage claimed,” we might find in these cases authority for overruling the defendant’s motion; but the Court of Appeals, prior to the present Constitution, in construing the acts of Assembly for the recovery of small debts,where the amount of the “debt or damage laid or claimed” gave jurisdiction, decided, that in actions ex contractu, these words meant the sum recovered, and if that was less than the sum named in the law, the county courts had not jurisdiction, but that a different rule prevailed in cases ex delicto. 1 Gill, 33, 203. 3 Gill, 251. The present court, recognizing this authority, applied the doctrine in Ott vs. Dill, 7 Md. Rep., 251, and hence, the judgment on this point could not be sustained, unless the cases are distinguishable by reason of the above' clause in the Constitution relating to costs. Looking to the design which we have imputed to the Convention, and to the duty of the court so to interpret, doubtful provisions as to maintain the jurisdiction of the legal tribunals, we are of opinion that the eleventh section must be understood as authorizing the Superior Court to render judgments on verdicts for less-than five hundred dollars; the provision as to costs, furnishing to suitors a sufficient inducement to institute their proceedings in the proper court, and not to invoke the jurisdiction of the Superior Court, except in good faith. These words were certainly intended to enable the judge to protect himself from an- undue amount of business, by holding the costs in terrorem over such as might be disposed to carry their causes to that court without reasonable expectation of recovering five hundred dollars or more, if this is not the proper interpretation of the section, the court’s discretion means nothing, because, on general principles, the costs would follow the judgment of non pros., and could not fall on the defendant. We cannot suppose that it was designed to award costs to the plaintiff where he is denied the benefit of his verdict, when this obvious result of a different construction may be avoided by treating the exercise of the discretion as a penalty to be inflicted on those who should implead defendants in that court, without a bona fide belief that their cases were within the prescribed jurisdiction-. The motion for a non pros, was properly overruled.

(Decided April 28th, 1859.)

If it clearly appeared, by the record, that the trial and finding of the jury were confined to the items of extra charge, there would be no reason for a venire de novo, all the evidence on that part of the case being now excluded. But the pleadings and proofs relied on set-off and payments on the original contract, and as it does not appear but that the verdict was made up, in part, of a balance due on that account, the plaintiff will have leave to apply for a procedendo.

Judgment reversed: