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Burdette v. Burrows

Decided: May 10, 1962.

BURDETTE
v.
BURROWS ET UX.



Appeal from the Circuit Court for Montgomery County; Pugh, J.

Henderson, Hammond, Prescott, Marbury and Sybert, JJ. Marbury, J., delivered the opinion of the Court.

Marbury

The appellees, Joseph F. Burrows and Anna May Burrows, his wife, in 1955, purchased a small farm near Goshen, Montgomery County, Maryland, consisting of a house, outbuildings and approximately twenty-six acres. They desired to have the house remodeled, and engaged an architect licensed in Maryland to prepare a contract, plans and specifications for remodeling of the home. Upon preparation of these documents the architect invited bids. Two bids were received, one of which was submitted by J. Norman Burdette, the appellant,

that was accepted. The appellant was an experienced builder, having done considerable remodeling work on a contract basis, as well as on a cost-plus basis. Prior to executing the contract appellant submitted to appellees an estimate on a cost-plus basis to do the work. The appellees rejected this offer, but thereafter the appellees and appellant, on December 29, 1955, executed a formal contract, wherein it was provided that the entire project was to be completed by the appellant for an amount not to exceed $20,100, including a fixed fee of $2,000.

After the execution of the contract the remodeling work went forth pursuant to plans prepared by appellees' architect. Appellant submitted three requests for payment in connection with the work done pursuant to Article 4 of the written contract. Appellees paid these requests within two days after receipt of same. The total paid pursuant to the requests was $18,875.63 on account of the contract price of $20,100.

Appellees, during the course of remodeling, orally requested changes in the work subject to the contract and, in addition, other work unrelated to the contract. The reasonable value of the changes and additional work was about equally divided and in total amounted to approximately $3,000. The appellant did not make claim for the extra work in writing before executing it, contrary to the provisions of Article 8 of the general conditions of the written contract. This failure was subsequently waived by the appellees.

At the end of the remodeling work a dispute arose between appellees and appellant as to the balance due. The appellant claimed that the amount due him was $13,621.35; whereas the appellees, after adjustments for changes in the contract work and extras, claimed $3,120.08 to be the full balance due by them. Pursuant to Article 18 of the general conditions of the written contract, requiring the architect to make decisions on all disputed claims, appellant furnished the architect with a partial list of extras and requested the appellees' list of extras be furnished him. Such a list was furnished appellant by appellees. However, appellant, though he thus recognized the existence of a contract between the parties, refused to thereafter arbitrate his claims as required by Article 19 of the

general conditions of the contract, on the ground his records were not kept so as to permit him to determine what work was done pursuant to the contract and what was extra work.

On January 24, 1957, appellant filed a mechanics' lien in the amount of $13,621.35, and on August 5, 1957, filed a bill to foreclose the lien in the Circuit Court for Montgomery County, Maryland. Evidence was taken before an examiner at which time the appellant claimed the written contract was abandoned. The case was submitted to the trial judge upon the pleadings and evidence so taken and, after oral argument by counsel in the court below, the trial judge, on September 7, 1961, filed an opinion finding from the evidence in the case that the appellant had not met the burden of proving the rescission of the contract and that the same was binding upon the parties. He further found that the appellees admitted owing the sum of $3,110.70 for extras, but were entitled to a credit for items they purchased which had not been paid for by the appellant in the amount of $1,214.99, leaving a balance of $1,895.71. He concluded his opinion by providing that upon the payment of $1,895.71, with interest from August 5, 1957 (the date of the filing of the bill of complaint), the court would sign an order dismissing the bill of complaint, costs to be paid by the appellees, because they had failed to make a tender of the amount they admitted to be due, but had a legal tender been made these costs would have been charged against the appellant.

On appellant's motion for modification of opinion the trial judge passed an order on October 18, 1961, amending his opinion to the extent of conditioning his order dismissing the bill of complaint upon the payment by the appellees of $3,120.08, with interest from August 5, 1957, and costs.

It was shown that the appellees had paid to the appellant the amount found to be due, interest and costs required by the lower court's opinion, whereupon Judge Pugh, on October 23, 1961, signed an order dismissing the bill of ...


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