Denmead v. Coburn

Le Grand, C. J., delivered the opinion of this court. This is an action of indebitatus assumpsit, for work and [43] labor, brought by the appellee against the appellant, to recover the sum of $963.71. The principal facts of the case may be thus stated: The appellant liad a mill race which flowed under Eager street, in the city of Baltimore, at the time when the city determined to fill up said street and extend it across Jones’ Falls. To enable it to do this effectively, it was necessary the mill race of the appellant should be arched over under the bed of the street, and accordingly the proper officer of the city entered into a contract with the appellee to build the arch for a specified price. Subsequently an arrangement was entered into between the city commissioner and the Messrs. Deumeacl, by which the sum agreed to be paid to the appellee, for the building of the arch, should be allowed to the Messrs. Denmead, they agreeing to have an arch placed over the mill race of a superior character to the one contemplated in the original contract with the appellee, and to be liable for any additional sum which it might cost, it being, also, a part of the said agreement that the appellee should do the work. Because of this understanding with the city commissioner, the agreement of date 22nd November 1852, was entered into. The evidence shows that whilst the arch was in the course of construction, a Mr. Crey, in fulfilment of a contract with the city, was engaged in filling up and extending Eager street to the margin of Jones’ Falls, and, of course, over the race of the appellant. Over this coutractor neither the appellant nor appellee bad any control, be being subject only to the city commissioner. Before the arch was completed that portion of it which was done gave way. This was owing, according to the opinion of different witnesses, to different causes; in the judgment of some of them, to the inferior character of the materials used and workmanship; in ibat of others, to the manner in which Crey, the contractor for filling up Eager street, caused the earth used for that purpose to be “dumped” down against the arch. There was sufficient evidence to go to the jury to sustain either theory. After the arch had fallen, the appellee was notified that he bad not fulfilled his contract, and subsequently it was rebuilt [44] by a Mr. Oliver, employed for that purpose by the Messrs. Denmead. In the rebuilding, according to the testimony of the builder, a small portion of the material which was in the former arch was used in the reconstruction. The claim of the appellee is for the building of the arch, extra work, and materials. During the progress of the wqrk the appellee received on acqount, and in part payment, $15Q. On the evidence, the plaintiff offered three prayers, which were granted, and the defendant four, the first three of which were granted, and the fourth rejected. 'There is no special count in the declaration on the contract; if any recovery be had it must be, because the work under the contract was fully performed and accepted by the partips for whom it was done, or, that the contract was abandoned by the consent of the parties to it, or, that by some act of the party sought to be charged, the fulfilment of the coptrapt was prevented, There is no evidence in the record that the work contracted for was completed, nor of the abandonment of the contract, nor of any act of the defendant by which the plaintiff was interfered with in the prosecution of his work. This being so, the authorities are clear, that there can be no recovery in this action for the work done on the arch. See Ellicott vs. Peterson, 4 Md. Rep., 491. The Chesapeake & Ohio Canal Co. vs. Knapp, and others, 9 Peters, S. C. Rep., 541. From what we have said it follows, that we are of opinion the court erred in granting the first and second prayers of thp plaintiff. It is dear, from all the evidence in the case, that the work fell down from one of two causes, either because of its inherent defectiveness, or because of the manner of “dumping” down, by the contractor Crey, of the earth against it, and whether it be the one or the other, the defendant is not liable. What was contracted for was an arch suitable to the purposes for which it was intended. If the plaintiff did not build such an one he did not do that which he had engaged to do. If his work was destroyed by the ficts of Crey, without any fault of the defendant, then his feinedy is against him, or against the city, if Crey was its [45] agent, if lie be entitled lo any against any party, under (lie particular circumstances of iiis case, in regard tí) which, however, we deem it improper to express an opinion. Delmonico vs. The Mayor, &c. of the City of New York, 1 Sandford’s S. C. Rep., 226. The defendant had no control over Grey any more than over any other third party, and in justice should not be held responsible for his acts. We do not think there is sufficient evidence to justify the jury in inferring'any assent, on the part of the defendant, to any extra work or departure from the terms of the contract. The plaintiff had agreed to build an arch of a particular character. It ought to be presumed that before he entered into the agreement he viewed the place where it was to be located, and that he calculated all, the difficulties likely to be encountered, and, inasmuch as his contract bound him to do the thing contracted to be done, it imposed upon him the obligation to do all indispensable to that end. Apart from the form of the appellant’s fourth prayer, from what lias been remarked, it follows that we are of opinion it was correct. It asserted the true principle, but was properly rejected, because it assumed facts, which, according to former decisions of this and the late Court of Appeals, ought to have been found by the jury. The same reasoning applies to the plaintiff’s third prayer. Whilst it correctly declares the right of the plaintiff to recover tbe value of any materials belonging to him which were used by Mr. Oliver in the rebuilding of the arch, it fails to require of the jury to find any such materials were used. (Decided January 19th, 1860.) We reverse the judgment of the court below. Judgment reversed.