Enniss v. O'Conner 3 H. & J. 163

Enniss vs. O'Conner et ux.

Appeal from Baltimore County Court from a judgment rendered in favour of the defendants in that court, (the present appellees,) in an action of covenant, lire defendant pleaded the general issue.

1. The plaintiff at the trial read in evidence a contract between him and Catharine, (one of the defendants,) whilst she was sole and unmarried, and with whom Michael, (the other defendant,_) hath sipee intermarried, by the name of Catharine Welsh, dated the 13th of July 1796, as follows; ¿‘Articles of agreement between Catharine Welsh, of Baltimore- town, of the one part, and Joshua Enniss, of the place aforesaid, of the other part, witnessed), that the said Enniss doth covenant and agree to finish the carpenter and joiner’s work of a house for the said Mrs. Welsh, on Bond street, in a plain workmanlike manner, as may be adjudg ed by a carpenter or joiner, as maybe {igreafter appointed; and the said Catharine Welsh, on her part, doth covenant and agree to give the present advance on tjie measurement of the aforesaid work. As witness,” &c. Signed and sealed by the parties. The plaintiff further oijbred in evidence, by persons not appointed by tjie parties for that purpose, that he, after the execution and delivery of the contract, and in compliance therewith, did progress in the completion and finishing the carpenter’s and joiner’s work of the house, mentioned in the contract of the defendant Catharine, whilst she was sole and unmarried, ii} a plain workmanlike manner, and was then and there willing ar,d ready to have completed anti finished the whole carpenter’s and joiner’s work of the house in a plain workmanlike mariner, but Catharine, whilst sole, &c. refused to permit the plaintiff to finish the whole of the carpenter's and joiner’s work, and discharged him from the same. He further offered evidence, by the testimony of witnesses who were not appointed according to the manner prescribed by the contract, that the value of the work so done by him for Catharine, whilst sole, &c. at the time he was prevented from proceeding with and finishing the work, amounted to the sum of-, and that the damages sustained by the plainiiif, by reason of his not being able to finish the work, according to the contract, in consequence of the refusal of Eathar'me to permit him, amounted to the sum of---- — . ' t ; t 1 • . ; , ' , 1 *164But the court, (H. Rulgely, Ch. J.) was of opinion, that the plaintiff was bound to show,’ in order to entitle him to recover, by a person or persons appointed for that purpose ; by the parties, that as far as he had progressed in the building he had executed the same in a plain and workmanlike manner, according to the averment in the declaration, and that the plaintiff having offered no such evideiice, it was irrelevant to go into evidence to show that the plaintiff was prevented from going on with the work by the defendant Catharine, or to go into any evidence of the damage sustained by the plaintiff. The plaintiff excepted.

*163In covenant on contract, where» by the sdahiliff a* j»Teed to finish the carpenter and joiner's wovk of a house, for the de* fondants, in. a plain workman* like manner, as mijrht be adjudged by a can pouter or joiner to h* thiToait.r apa pointed ThA plaintiff pro-» pressed, in the work, but wat! prevented ivont completing it hy the defendants# who discharged hiin, A valuation» wa' made of the work done, by persons not appointed by the partió-, and evidence given of the damage sustained in consequence »’£ not. being permit' ted to .finish the work. lhl<U that the plaintiff, in order to entitle him to recover# bound to show, by a person or persons ap* pointed for that puipose by the pavties, that as far as fu- had progressed in die builds ing he had executed it in a plain workmanlike mnnucr; and that» as the plainliifhad evidence, it w.»* irrelevant to £0 into evidence to> show that he •was pietented from ftoint; on'wnli the woi k hi' the do-fondants, or to gu into any evidence? of the damage ¡»iw , lamed by hnw

*1642. The plaihliff, in support of the declaration, then offered to prove by G. Hall, B. Spencer and D. Harrison, that the defendant had appointed Harrison to measure and adjudge the work done by the plaintiff, but that Harris son refused to act, unless some other persons were ¡appointed to act with him; that the defendant then nominated G, Hall, J. Boyer and J. Moore, for that purpose; that when Harrison, Hall, Boyer and J. Moore, came to the house, Hall refused to proceed unless he had the plaintiff’s consent, and Hall, in the presence of the defendant, requested Spencer to go to the plaintiff and a§k him if he consented that he or they, (meaning the persons appointed,) he is not certain which, should measure and adjudge the work, to which the plaintiff replied fie was satisfied that he or they, (he does not recollect which,) should; which answer of the plaintjff, Spencer informed Hall of, upon which Hall and Harrison, Boyer and Moore, each of them did individually measure and examine every part of the work; ami (hat Hall, in'making up his opinion of the work, did not rely «pon the information or -examination of any person but himself, and that his judgment was formed solely from his ^owh measurement and observation on the work, but that Hall did not conceive himself authorised to act alone, and said he -would not, "without the other persons so appointed acted also. That the day after Hall liad so measured and adjudged the work, fie informed the plaintiff that he, together with Harrison, Moore and Boyer, had adjudged and measured the work, upon which he expressed his entire approbation ; and that Hall, and the other persons so appointed, were carpenters. But. the court, (H.Rulgely, CSfi. J.) refused to permit the above’ evidence to go to the jury to support the plaiptijf’g declaration. The piaiqfiffexcepted; *165and the verdict and judgment being for the defendants, he appealed to this court.

The case was argued before Chase, Oh. J. Polk, Buchanan, and Ctajttt, J. by

Winder, for the Appellant;

and by

W. Dorsey, for the Appellees,

He cited Bristow vs. Wright, 2 Doug. 666, 667.

The Jlrot hilt of exceptions was abandoned by the appellants counsel.