Black v. Woodrow

39 Md. 194, 1874 Md. LEXIS 4

• Court: Court of Appeals of Maryland
• Decided: January 16, 1874
• Status: Published

Opinion

Alvbt, J.,

delivered the opinion of the Court.

In this case, Woodrow and Richardson sued Black on a contract for the building of a house by the former for the latter. The declaration, as originally filed, contained six counts; the first four being common counts, for work and labor, for materials provided, for money paid, laid out and expended, and for goods bargained and sold ; and the two remaining counts being framed on the special agreement. By the first of these special counts, it is alleged that the appellees, the plaintiffs below, agreed with the appellant to build him a house on his farm, for which the latter agreed to pay to the former six thousand dollars; and that, in pursuance of the agreement, appellees commenced to build the house, and expended large sums of money thereon, and that they were ready and willing to comply with their contract, and complete the house in accordance therewith, but that the appellant prohibited and forcibly prevented them from so doing, and compelled them, at great expense, to take away the materials by them provided for the building of such house; and that the appellant refused, and still refuses, to pay the appellees for the work and materials provided, to their damage of six thousand dollars.

By the second special count, being the sixth count in the declaration as originally filed, it is alleged that, the appellees and appellant agreed together that the former would build for the latter a frame house on his farm, in the manner and according to the specifications stated and set forth, and that the appellees, in pursuance of the contract, commenced and progressed in the work of erecting such house, and expended large amounts of money in providing materials therefor ; and although the appellees were then and there ready and willing and anxious to comply with the contract in every particular, and to build the house in every respect in exact accordance with the contract, they were prevented from so doing by the express orders of the appellant, whereby they sustained damage to the amount of six thousand dollars.

The four common counts were stricken out by consent after the jury were sworn ; and, to the two special counts, the appellant pleaded that he did not commit the wrong alleged ; a plea wholly inappropriate to this action, but, as no objection was taken to it in the Court below, wo must, to give it any effect at all, suppose that it was intended to traverse the breaches assigned in the two counts to which it was pleaded.

In the course of the trial in the Court below three bills of exception were taken by the appellant; two of them to rulings upon questions of evidence, and the third to rulings in respect to the prayers offered by the appellant. The verdict being against the appellant, he also moved in arrest of judgment, and assigned as reasons for the motion: 1st, that the amount of the verdict exceeded the amount claimed by the bill of particulars; 2ndly, that the declaration failed to allege a tender or offer of performance, or a sufficient excuse for non-performance, of the contract by the appellees; and, 3rdly, that the declaration was in other respects defective and insufficient.

This motion in arrest, going as it does to the right of the appellees to maintain the action on the present declaration, will be first considered.

And first, as to the amount of the verdict being in excess of the amount claimed by the particulars of demand. It is clear, we think, that the motion in arrest cannot be sustained on this ground. The bill of particulars makes no reference to any particular count in the declaration; and it was filed when the declaration embraced the common counts which were afterwards stricken oat. It. does not appear to have been the intention of either the appellant in demanding the bill of particulars, or the appellees in filing it, to make it extend to any count in the declaration to which it was not reasonably and properly applicable. As a general rule, a bill of particulars, unless restricted to some particular count, applies to all the counts of a declaration, if they be of a character to require such aid, in order to notify the defendant of the nature and extent of the plaintiff’s claim. Such were the cases of Carter vs. Tuck, 3 Gill, 250, and Scott vs. Leary, 34 Md., 389. In both those cases the declaration contained only the common counts in assumpsit and where the particulars were properly demandable with reference to them all. But it is only “where the pleading is so-general as not to give sufficient notice to the opposite party of the evidence to be offered in support of it,” that a bill of particulars can be required. Code, Art. 75, sec. 22, sub-sec. 107. This criterion prescribed by the Code is but the expression of the previous rule of practice. In cases where the declaration is special, and disclosed the nature and extent of the demand, as in cases of counts upon promissory notes, or bills of exchange, there is no right in the defendant to require greater particularity than the count affords. In this case, the bill of particulars was proper in reference to the common counts, and, perhaps, to the fifth count, as that count goes only for the work and labor, and materials furnished under the contract. But as to the sixth count, the particulars were unnecessary, and were not demandable, as the count itself was special, setting out fully the contract, and alleging as a breach the appellant’s prevention of performance of the contract by the appellees, and the consequent damage sustained by them. The count, therefore, furnished sufficient notice of the nature and character of the claim, and of the evidence required to support it. This is all that a defendant has a right to demand, in regard to the certainty of the plaintiff’s claim.

Wherever, says Mr. Tidd, (Pr. 597,) the particulars of the demand are disclosed in the declaration, as in special assumpsit, covenant or debt on articles of agreement, die., or in actions on matters of record, an order to furnish particulars is unnecessary. And it has been expressly decided that the Court will not compel a plaintiff suing for the breach of an agreement, and assigning by way of special damage, that he has incurred certain expenses, to furnish particulars of such special damage. Retallick vs. Hawkes, 1 M. & W., 573. See also Fisher vs. Wainwright, 1 M. & W., 480; Stannard vs. Ullithorne, 3 Bing. N. C., 326, and Day vs. Davies, 5 C. & P., 340. And Mr. Evans, in his Maryland Practice, p. 256, states the rule to be, that “ where the declaration sufficiently discloses the particulars intended to be relied on, a bill of particulars is not necessary or allowed. And if a bill of particulars be actually given, it will produce no effect; but the party may still prove anything which he might have proved, had there been no bill of particulars.”

It follows, therefore, as the sixth count was of a character not to require the aid of a bill of particulars, and the bill of particulars furnished not professing to apply to it, the appellees’ right to recover under this count, was in no manner restricted by such particulars, and consequently, the first ground for the motion in arrest fails, even if such question could, in any case, be properly raised on suck motion; a technical question that we do not now decide.

2. Then, as to the second and third grounds for the motion, namely, that there is no sufficient allegation of tender or offer of performance, or of excuse for nonperformance of the contract, by the appellees, and that the declaration is in other respects insufficient.

By the fifth count in the declaration, it is alleged, as we have seen, that the appellees were ready and willing to comply with the contract, and to complete the house, but that the appellant prohibited and forcibly prevented them from so doing, and compelled them to desist from the work; and, by the sixth count, it is alleged that the appellees were then and there ready, and willing, and anxious to comply with the contract in every particular, but that they were prevented from so doing by the appellant.

Now, it is certainly clear, that the appellant by preventing the appellees from performing their part of the contract, committed a breach of it, for which he is liable. It is said however, that the contract is silent as to any promise by the appellant to suffer or allow the house to be built; and that his only express promise, was to pay the price agreed on, part while the house was in course of erection, and the balance after its completion according to contract; and, that as the appellant could elect to have the house built or not, as he thought proper, and having elected not to have it built, the condition alone upon which the appellees could sue upon the contract as subsisting has never been performed by them, namely, the erection of the house according to the contract, and, consequently, there has been no such breach assigned as entitles them to recover on the contract, whatever might be their right to recover in general indebitatus assumpsit, as for work and labor done and materials furnished. That the only breach for which the appellant can be liable on the contract itself, as he contends, is the nonpayment of the agreed price for the building of the house, and as the house has not been built, the declaration shows no such breach of the contract on the part of the appellant as will render him liable to the appellees in this action.

With respect to the proposition that the appellant was not bound to have the house huilt, it is certainly true, that the appellees could not persist in building the house against the consent of the appellant, and in defiance of his express order to desist; but with respect to the other proposition, that there was no promise of the appellant to allow it to be built according to the contract, and that consequently, his prevention constituted no breach, that cannot for a moment be conceded.

It not unfrequently occurs, that contracts on their face and by their express terms appear to be obligatory on one party only; but in such cases, if it be manifest that it was the intention of the parties, and the consideration upon which one party assumed an express obligation, that there should be a corresponding and correlative obligation on tbe other party, such corresponding and correlative obligation will be implied. Thus, if the act to be done by the party binding himself can only be done upon a corresponding act being done or allowed by the other party, an obligation by the latter to do or allow to be done the act or things necessary for the completion of the contract will be necessarily implied. Churchward vs. The Queen, 6 B. & S., 807. And among tbe instances given of such implied obligation, is the case where A. covenants or contracts with B. to buy an estate of the latter, at a given price, there, although the contract may be silent as to any obligation on the part of B, to sell, tbe law implies a corresponding covenant or contract by him to sell and convey the estate. Pordage vs. Cole, 1 Wms. Saund., 319. Indeed, no better instance of the proper application of the principle could be furnished than the present case. The appellees agreed with the appellant to build for the latter a house on his land, for a certain price, part to be paid while the house was in course of erection, but the larger part of the price was not to be paid until tbe bouse was completed; and although the appellant could not be compelled to have the house built against his consent, yet, notwithstanding the contract is silent as to the appellant’s promise that he would suffer the house to be built, the agreement with the appellees for the building of the house clearly implies that he would allow that to be done, without which it would be impossible for the appellees to do what they had agreed to do.

To allow or suffer the house to be built was the corresponding or correlative obligation of the appellant, implied bylaw, to the obligation of the appellees to build the house, as expressed by the contract; and for any breach of this implied promise or obligation by the appellant, he is equally liable as upon an express promise. The only question is, whether a sufficient breach of this implied obligation has been properly assigned in the declaration before us.

In the case of Cort & Gee vs. The Ambergate, &c. R. Co., 17 Adol & Ell., N. S., 127, where there was a contract for the manufacture and supply of a certain quantity of railway chairs by the plaintiffs for the defendants, to be paid for after delivery, and the defendants, having accepted and paid for a portion of the chairs, gave notice to the plaintiffs not to manufacture any more, as they, the defendants, had no occasion for them, and would not accept or pay for them ; in an action upon the contract, it was held, that, as the plaintiffs were desirous and able to complete the contract, they could, without manufacturing, and tendering the rest of the chairs, maintain an action against the defendants for a breach of the contract. It was also held, that the simple notice by the defendants to the plaintiffs that the latter should not go on to supply the rest of the chairs, entitled the plaintiffs to recover, on a count alleging that they were ready and willing to perform the contract, and that the defendants refused to accept the residue of the chairs, and prevented and discharged the plaintiffs from the further execution of the contract; that such notice by the defendants was a legal prevention, though there was no other act of obstruction. So in the case of Derby, et al. vs Johnson, et al., 21 Vt., 17. There the plaintiffs and defendants entered into a written contract, by which the former engaged to do all the stone work, masonry and blasting upon a certain piece of railroad, at certain specified prices by the cubic yard. The plaintiffs entered upon the performance of the contract, and while they were so engaged, the defendants gave them direction to quit the work, and to do nothing more under the contract; and the plaintiffs having quit the work as directed, it was held to be no relinquishment of the contract on their part; but that the defendants, in giving the notice aud stopping the work were in the exercise of a right that belonged to them, leaving themselves liable, of course, for all consequences resulting from tlieir breach of the contract. The same principle was very fully stated and adopted in the case of Clark vs. Marsiglia, 1 Denio, 317.

Now, in the case before us, according to the averments of the declaration, the appellees were notified and directed by the appellant to desist from the further prosecution of the work contracted to be done by them, and were thus prevented from performing their part of the contract; and though the appellant had a right thus to stop the work on the building, yet, by so doing, he committed a breach of the contract, and thereby incurred a liability to pay the damages that might result therefrom. And the damages in such case would include compensation for the labor done and materials furnished, and such further sum in damages as might, upon legal principles, be assessed for the breach of the contract. 1 Denio, 317; Phil., Wil. & Balto R. Co. vs. Howard, 13 How., 307, 344. And although the declaration omits in terms to aver the implied promise on the part of the appellant to allow or suffer the house to be built, but sets out in the sixth count the contract in full, and is not very formal or technical in stating the breach of such implied promise, still, the fact of prevention is alleged as the breach, and that is sufficient, especially after verdict, which is aided by intendment. 1 Chit. Plead., 337.

Discovering no sufficient defect in the declaration to defeat the verdict in this case, we are of opinion that the motion in arrest of judgment was properly overruled by the Court below.

3. The next question is that presented by the appellant’s first exception, and his first and second prayers, embraced in his third exception ; and that question is, whether the agreement sued on was void, and therefore inadmissible in evidence, because of the want of a proper United States revenue stamp thereon at the time of its execution ?

This question has arisen and been decided by several of the highest State Courts of the Union, and it has also been before' the Supreme Court of the United States, though not in the form here presented.

In the several State Courts in which the question has arisen, with one or two exceptions, the decisions have been, upon one ground or another, against holding the instruments void for the want of the stamp. In some of the Courts it has been held that the Act of Congress requiring the stamp, does not apply to the State Courts, but to the United States Courts alone ; while in others of high authority it has been held not to be within the constitutional power of Congress to declare a contract between citizens of a State void for the mere omission of a revenue stamp. But in, perhaps, the greater number of cases where the question has arisen, it has been held that instruments, though not duly stamped, are not therefore void, or inadmissible in evidence, if the omission to stamp was without intent to evade the provisions of the Act of Congress; and the same cases hold, that, in the absence of clear affirmative proof, a fraudulent intent to evade the Act will not be presumed. This, upon the express language of the Act of Congress itself, (Act of 13 July, 1866,) would seem to be but a fair and reasonable construction. It is only declared that the instruments required to be stamped “shall be deemed invalid and of no effect” when the stamp is omitted “with intent to evade the provisions” of the Act — that is, with the intent to defraud the government of the stamp duty. It is therefore, as said by the Supreme Court of the United States, in Campbell vs. Wilcox, 10 Wall., 420, a fraudulent and not an accidental omission at which the penalty of the statute is directed. And taking this to be the proper construction of the language of the Act, and without at all deciding that the Act is or is not within the constitutional power of Congress, as applied to the State Courts, or whether it was intended to be so applied, we think the Court below was right in deciding as it did in reference to this question, and allowing the agreement to be used in evidence, inasmuch as there was no evidence whatever of any fraudulent intent on the part of the appellees to evade the provisions of the Stamp Act. The stamp tax, of the class to which that in question belongs, has been repealed or abolished, since the 1st of October, 1872, by the 36th section of the Act of Congress, of June 6, 1872; but the effect of that repeal is unimportant to be considered in this case.

4. The question presented by the appellant’s second exception is, whether the Court below was right in not allowing the appellant himself to give evidence of what a deceased witness had proved on a former trial between the same parties, and which involved the same cause of action involved in the present case.

The appellant stated, when sworn as a witness on his own behalf, that he was present at the former trial, and heard the testimony of the deceased witness; and that he could state substantially what the deceased witness said as to the quality and condition of certain lumber, ata certain place, which was proposed to be used in the building, but could not state substantially what the deceased witness said as to the different qualities of pine grown in the States of North Carolina and Georgia, as to which the deceased witness gave evidence. It thus appearing that the appellant did not recollect, and could not state even substantially, all that was testified to by the deceased witness on the former trial, objection was taken by the appellees to the appellant’s right to give in evidence such part of the deceased witness’ testimony as could be recollected, and the Court sustained the objection, and in so doing, we think it entirely free from error.

There is no doubt of the general rule, that evidence given by a deceased witness on a former trial between the same parties, where the question in issue is the same in both cases, and the right of cross-examination could have been freely exercised by the adverse litigant, may be proved on a subsequent trial by any person having competent knowledge. But such witness, to be competent to testify as to what was said by the deceased witness on the former trial, must be able and profess to state the facts testified to by the deceased witness. It-is not required to be in the precise language of the deceased witness, it is true ; but it must be as to the facts proved, and not the mere substance of the evidence as formerly given, according to what the living witness may suppose to be its effect or construction. And not only should the facts deposed to by the deceased witness be stated, but all the facts deposed to by him, as well upon the direct as the cross-examination. The reason of this requirement is plain. For, as has been well said by the late Chief Justice Shaw, one part of the evidence may have been materially qualified, softened or colored by another ; and it would be of no avail to the party against whom the witness is called to state the testimony of the former witness, that he has had the right and opportunity to cross-examine that former witness, with a view of diminishing the weight or impairing the force of that testimony against him, if the whole and entire result of that cross-examination does not accompany the testimony in chief, Warren vs. Nichols, 6 Metc., 261. This general rule, requiring all the evidence of the deceased witness given on the former trial to be stated, may have exceptions in cases where there were several and distinct issues, involving distinct subject-matters, in reference to which the deceased witness testified. But that is not shown to be the case in this instance. On the contrary, from the nature of the evidence of the deceased witness, as described by the appellant, it is manifest that it all had reference to the one question, and that was the quality and relative value of the lumber that was proposed to be, or that should have been used in the erection of the house.

But the offer was simply to prove the substance of a particular part of the deceased witness’ evidence, and that too by the defendant in the cause, in the face of his own statement that he could not recollect the whole of it. If, however, he had professed to recollect and to be able to give the substance merely of the whole of the evidence, it would not have been admissible under the law as settled in this State. In the case of Garrott vs. Johnson, 11 Gill & John., 173, the Court of Appeals, after referring to the rule as it appeared to exist in England, and its relaxation in several of the States of this country, in admitting proof of the substance merely, said that it could, with reason and propriety, be objected, that to admit the substance, would be too great a relaxation of the English rule, and open too wide a door for a safe and due administration of justice. They then proceed to say: “In such cases we are not disposed to adopt or give our assent to either rule ; but to adopt a principle, which, while it would be sufficiently protective of the rights of juries to draw inferences, and decide upon the effect of testimony. which seems to be the reason of the rule in England, would not be so lax in its operation, as to admit evidence with too much facility on the one hand, or to reject it with too great rigor on the other. We think that for all the purposes of truth and a safe administration of justice, it may be held, that where it is necessary to prove what a deceased witness swore on a former trial between the same parties, where the issue or matter in controversy was the same, as the one then pending, it is sufficient for the living witness who is called to testify, to prove facts, that is to say, that the witness who is dead, in giving in his testimony deposed to certain facts. Such a rule would be sufficiently restrictive, to exclude the opinion and construction of the witness on the one hand, and not so rigid as to deprive a party in many instances of the benefit of such testimony on the other.” The offer in this case was not to prove facts as such deposed to by the deceased witness, but to state substantially the testimony in part of the deceased witness, and this of course as the living witness may have construed it. This was properly disallowed.

(Decided 16th January, 1874.)

5. The only other question presented, is that arising on the appellant’s third prayer. But in regard to this, we think there is no difficulty. The construction of the contract, in respect to the particular point of this third prayer of the appellant, had been very properly embodied in the third prayer of the appellees, which had been granted by the Court, and to which the appellant did not except; and the Court below could not have done otherwise than modify the appellant’s third prayer as it did, in order to produce consistency, and to avoid misleading the jury. There was, therefore, no error in refusing to grant the prayer as offered, nor in granting it with the modification.

Finding no,error we shall affirm the judgment,'

Judgment affirmed.