Walsh v. Jenvey

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 rest is not contained in the bill of exceptions certified by the trial Judge. Nor do we think the first prayer is properly subject to the objection that it omits all special reference to the testimony in regard to acceptance. The prayer is based upon the testimony in the case, and if the defendant had desired so to do, he could have called the jury’s attention in a more specific way, by a proper instruction, to all the evidence relating to acceptance. The second prayer instructs the jury that if they find the special contract as testified to by the plaintiff, and that the plaintiff did in fact bind and clean the defendant’s books, but not in the skillful way as provided by said contract, still if the defendant accepted them the plaintiff was entitled to recover such sum as the jury may find his work and materials were actually worth. With a slight modification this would undoubtedly have been a correct proposition of law. As was said in Watchman v. Crook, 5 G & J. 239, “Where a covenant exists to do a particular piece of work, if after the work is done, though not pursuant to the contract, the party for whom it was done accepts it, it would seem to be right and proper that he should pay what it is worth. Justice requires this and the principles of law do not forbid it.” We think, however, that this prayer, as well as the third, should have been so modified as to instruct the jury that their verdict, if for the plaintiff, should not exceed the rate of compensation fixed by the special •contract. This suggestion, however, does not appear to have been made to the Court below, but it is manifest that *245 the plaintiff ought not to be allowed under any circumstances to ■ recover more than he had agreed to accept for the work and material, when the former was skillfully done, and the latter such as were required by the terms of the special contract, but especially so, when, in both the second and third prayers, the jury were not obliged to find that either the work or materials were as good as the contract called for. In this case it appears that the jury have exceeded this reasonable measure of damages. For it appears from the testimony that the claim of the plaintiff at the contract price was $644 for binding and $13.10 for cleaning' books, making a total claim of $657.10. Deducting a conceded credit of $250, the balance remaining due would be $407.10. But the verdict was for $462.66, or $55 in excess of the amount for which they could have found a verdict under the modification we have mentioned. It will be observed that under none of the prayers is the question of interest referred to. And, although the amount is small, we think it our duty to reverse because of the error we have indicated.

(Decided February 24th, 1897).

The prayers of the defendant were properly rejected. They are all baséd upon the proposition that the plaintiff was not entitled to recover anything unless he could show that the work was done in strict conformity with the contract, notwithstanding the work as actually done, and the materials supplied were accepted by the defendant. Such a proposition, as was said in Watchman v. Cook, supra, is contrary to justice and law. The plaintiff even on theory of defendant’s prayers was entitled to recover such sum as, under all the circumstances of the case, the jury should find his work and materials were worth, not exceeding the contract price.

Judgment reversed and rattse remanded.