Iron Clad Manufacturing Co. v. Stanfield

Schmucker, J., delivered the opinion of the Oourt. The, appeal in this case is from a judgment of the Superior Court of Baltimore City in an action of assumpsit on a building contract. The declaration contains the common counts together with a special one on the contract. The case was tried, on an issue joined on the general issue pleas, before a *381 jury which, rendered a verdict for the plaintiff. From the judgment entered on that verdict the appeal was taken. It appears from the record that on April 20th, 1905, the appellees, Stansfield & Son, who were builders and contractors of long' experience in Baltimore City, entered into a contract with the Iron Clad Manufacturing Company, a New York Corporation, for the erection in Baltimore of a one-story factory building 58 feet wide by 105 feet deep to be used in the manufacture of galvanized or enameled ware. The contract was not drawn in formal style but was entered into by means of written proposals and acceptances simultaneously made by the respective parties. No formal plans or specifications accompanied the contract but the several written documents of which it was composed contained a variety of provisions which taken together may be regarded as tanfamount to a set of specifications. These specifications called for a brick building, of the dimensions1 mentioned, with a slag roof to be guaranteed against leakage and wooden floor to be constructed according to the specifications, the material to be of the best quality, of its specified kinds and the work to be done in the best workmanlike manner. The building was to be completed, in two weeks from the time of starting work on it, and was required to be satisfactory to the company for which it was erected and meet the approval of its master mechanic. The contract price for the complete building was fixed at $2,900. After the building had been commenced the company, having acquired more land adjacent to the lot on which it was being erected, desired to have a larger factory. A supplemental contract was accordingly made between the parties, on May 9th, 1905, by written proposal and acceptance for constructing the proposed building of substantially the character originally intended but of the dimensions of 276 feet by 105 feet at an additional cost of $7,200 with the option to the company of having a cement floor at the further cost of $2,800. The company having elected to have the cement floor, the total contract price became $12,900. *382 ■ The supplemental contract was in reality made with the Iron Clad Company of Maine which had in the meantime been formed by the persons interested in the New York corporation, but no complication results from that circumstance as both corporations admitted in open Court their joint liability for whatever was justly due under the contract. The building was erected and taken possession of by the companies and used for the manufacture of their wares, and payments were made by them on account of its construction.. The suit was brought for an alleged balance of $5,100 of the contract price. There is evidence in the record tending to prove that the plaintiffs had complied with all of the provisions of the several contracts on their part and also evidence of a contrary tenor. The defendant companies sought during the trial below to recoup from the contract price for alleged defects in the work and deviations from the contracts. At the close of the case below the plaintiffs offered six prayers and the defendants offered seven. They will be set out in the report of the case by the Reporter. The Court granted the plaintiffs’ third, fourth and fifth prayers in the form in which they were offered and their first and second prayers, after modifying them in certain respects, and rejected their sixth prayer. The defendants’ first and seventh prayers were refused and their second, third, fourth and sixth prayers were granted as offered and their fifth prayer was granted as modified by the Court. The appellants’ criticism of the plaintiffs’ first- prayer as granted is that it was misleading and calculated to create the impression upon the minds of the jury that a substantial compliance with the contract by the plaintiffs would entitle them to the full contract price. We do not think that the prayer is fairly open to that objection. It instructs the jury that if they find from the evidence that the plaintiffs constructed the building in substantial accordance with the terms of the contracts and that the defendants had occupied and used it *383 as a galvanizing factory and that it was reasonably satisfactory and acceptable to them and that there was a balance due on account of its construction then their verdict should be for the plaintiffs, the defendants having waived in open Court the requisite of approval of the building by their master mechanic. The prayer does not base the plaintiffs’ right of recovery upon the single ground of an erection of the build ing in substantial accordance with the terms of the contract but required the jury also to find that the defendants had accepted and used it for the purpose for which it was erected and had found it reasonably satisfactory and acceptable. The prayer does not say that the jury should allow the plaintiffs the full contract'price if they found the facts upon which it is predicated. • It goes simply to the plaintiffs’ right of recovery. It and the second prayer together make full and just provision for. proper reductions in arriving at a verdict from the contract price, for any defects in the building which the jury might find to exist. The question of the measure of damages is dealt with in the second prayers of the plaintiffs and defendants, which in effect state the same rule upon the subject although their statements of it differ slightly in form. Both of the prayers provide for the finding by the jury of the existence of defects in the building caused by lack of workmanship or inferior material'used, or deviations from the plans and specifications not acquiesced in by the defendants. The plaintiffs’ prayer directs the jury, in arriving at their verdict, to deduct from the unpaid balance of the contract price, a sum equal to the extent to which any such defects and imperfections “have made said building less valuable to the defendants.” The defendants’ prayer directs the jury to deduct from the balance of the contract price remaining unpaid “such sum as they may find that the value of the building was lessened by reason of such defects or imperfections.” Both the plaintiffs and defendants, in these prayers stating the measure of damages, adopt the contract price as the standard and direct that the defendants be comqtensated for defects or imperfections *384 in the building by deducting from the unpaid balance of the contract price the amount that the value of the building was lessened by the defects or imperfections. The measure of damages under the facts of this case was in our opinion correctly stated in those two prayers, but in any event the appellants cannot complain of the granting at the instance of the plaintiff, of essentially the same instruction which was granted at their own request to them as defendants, not only in their prayer now under consideration but also in their third and fifth prayers. We find no error in the action of the Court in granting the plaintiffs’ third' prayer. Nor can we agree with the appellants that the record contains no evidence to sustain the statement in that prayer “that the construction of the said platform was postponed by request of the defendants and was afterwards erected promptly upon request.” The contract called for the erection inside of the building of a loading platform, of the same heighth as the floor of a freight car, to facilitate the handling and loading of freight. The record contains the evidence of J. Elmer Stanfield one of the plaintiffs that the loading platforms were put up as soon as the defendants had the railroad tracks rqn alongside of the building and that it was impossible to construct them sooner as until the elevation of the tracks was fixed it could not be determined how high to make the loading platforms. He further testified that the defendants “wouldn’t allow him to put the risers in until the siding was in because they wanted them level with the bottom of the cars.” There is evidence in the record that the “risers” were platforms at each door, on the side of the building next to the car track, which were substituted for the long platform at the suggestion of Mr. Conn, the superintendent of the defendants’ factory, who testified that the defendants had approved the change. The plaintiffs’ fourth and fifth prayers correctly state the law with reference to the matters to which they respectively refer. *385 The defendants’ first prayer was properly rejected. It instructed the jury that if they found that the plaintiffs did not perforin their agreement in any one of ten particulars, which it stated in separate numbered paragraphs, they should deduct from the unpaid balance of the contract price the reasonable cost of putting the building contracted for in the same condition as if the plaintiffs had performed their agreement in all particulars. Now as ‘to some of these enumerated particulars there was evidence tending to show a failure to fully meet the requirements of the contract and also evidence tending to show what it would cost to make the building conform to the contract in these respects, while as to others of the particulars there was no such eivdence at all. Again the fourth of the enumerated particulars, to the performance of which the prayer holds the plaintiffs, is not correctly stated therein. As stated in the prayer it is “to put as many skylights in the whole roof 6 by 7 as would give the same amount of light over the whole building that six skylights five feet by six feet would have given in the building first contracted for, viz, 58 feet by 105 feet.” What the contract of May 9th, 1905, which provides for the erection of the enlarged building says in that respect is “I will make the skylighting six by seven .feet throughout the building and will have enough skylights to make the building perfectly light so that your men can work in any part of the building without using artificial light.” We find no error in the rejection of the defendants’ seventh prayer. It undertakes to so construe the contracts as to give to the defendants the benefit, of what the wooden floor called for by the contract of April 20th, 1905, would have cost, as an incident of their election to have a cement floor in the entire building. The appellees in the offer to erect the building say in plain English that if the defendants “decide to use a cement floor throughout the new factory building as well as the factory building in the first contract I made with you I will charge $2,800 extra.” The written acceptance of that offer by the appellants appears on its face. No allowance *386 of cost for the wooden floor is mentioned or suggested. The Court cannot make a different contract, for the parties, from the one which they have themselves made. We find no error in the Court’s action in making modifications in certain of the granted prayers as they were put in shape thereby to fairly present the law of the case to the jnry. The record contains fifteen exceptions to rulings on evidence. The first exception is to the overruling of the defendants objection to this question put to the plaintiff on his own behalf. “Can you state whether or not based on your experience as a builder this building was put up in accordance with the written specifications, plans and the contract?” The record does not show that the grounds of the objection were stated when it was made but it is now contended that it was objectionable because it was leading and also because it asked the witness the very question that the jury were to decide.' It is too late now to raise for the first time the objection that the question was leading. That should have been raised below when the question was asked so that the examining counsel could have put the inquiry in a proper form if he desired to do so. Poe's Practice, sec. 274; Brown v. Hardcastle, 63 Md. 495; Kerby v. Kerby, 57 Md. 361. The other ground of objection to the question was also untenable. In the cases of Balto. Belt R. R. v. Sadtler, 100 Md. 306, and Con. Gas. Co. v. Smith, 109 Md. 198, on which the appellant relied in this connection, we held .that experts could not be allowed to express a mere opinion upon the very question which the jury are to decide as that tends to substitute the opinion of the expert for that of the jury which the litigants are entitled to have. The witness here was not a mere expert. He was the contractor himself who had actual knowledge of whether the work called for by the contract had been done. The question it is true asked for an answer based on his experience as a builder but it was not a hypothetical question put to an expert having no actual knowledge of the facts to elicit from him a mere opinion. The record shows *387 the question to have been a formal or opening one as the witness was then asked separately in reference to the plaintiffs’ compliance with all of the provisions of the contract on their part. Under these circumstances we find no reversible error in the ruling in that exception. We do not notice in detail the second exception because the record does not show that the question objected to was answered and also because the same question appears to have been afterwards put to the witness without objection and answered. Nor do we regard it as necessary to comment in detail upon the rulings upon the questions put to the witness Conn which form the basis of the third to the eighth exceptions inclusive, nor upon the Court’s action upon the question put to the witness Stanfield presented by the twelfth exception. All of those rulings were rendered immaterial by the subsequent waiver in open Court by the defendants of the provision of the contract requiring the approval of the building by their master mechanic. The ninth-exception was taken to the refusal of the Court to permit the defendants to ask the witness Stanfield upon cross-examination a question based upon a statement made in a letter from the general manager of the defendants in New York to their Baltimore office. The subject-matter to which the question related had been well covered by the previous testimony of the witness as well as by that of Conn the factory superintendent and we do not think the trial Judge at all exceeded his legitimate control of the limits of cross-examination in the ruling to which this exception was taken. The plaintiffs asked their witness Stanfield on re-direct examination “Do you know whether this company, the Iron Clad Company used material there that would damage a cement floor?” He answered, “Yes, sir; I do.” He was then asked, “What did they use?” The defendants objected to the question but the Court overruled the objection. The ninth exception was taken to that ruling. There was no error in *388 permitting the question to he asked. The defendants had contended, and offered evidence in support of the contention, that the cement floor had been defectively constructed. The answer of the witness tended to show that the alleged ■ defects in the floor were due to the spilling on it of acids used by the defendants’ employees in the processes of manufacture carried on by them. It was quite within the discretion of the trial judge to allow the question to be put. N. Y. P., etc.. Ry. Co. v. Jones, 94 Md. 24-35; Blake v. Stump, 73 Md. 160; Miller v. Leib, 109 Md. 414. The eleventh exception was to the Court’s refusal to strike out the following answer of the witness Stansfield, which had been admitted subject to exception. “Mr. Conn told me it was due to the acid and stuff they used in there for the pickling; he said they couldn’t help it; that they were bound to get it over the floor. He said, that will have to go, just that way. He said that it was no fault of mine.” In view of the fact that the witness Conn had been shown' to be in charge of the defendants factory and the processes in operation there, we think the evidence was admissible as tending to show an admission on their part that the floor had been injured in the manner stated in the answer. Without reviewing in detail the rulings on evidence which form the subjects of the thirteenth, fourteenth and fifteenth bills of exception, we say that we have examined all of them and find no reversible error in them. Finding no reversible error in any of the actions or rulings of the Court below we will affirm the judgment. Judgment affirmed with costs,