John Coates and Wm. C. Glenn, vs. James A. Sangston, et al., Garnishees of Edward Cunningham, 5 Md. 121

Tuck, J., delivered the opinion of this court. This was a proceeding by attachment, at the instance of the appellants, against Edward Cunningham, as an absconding debtor, which was laid in the hands of the appellees, who appeared as garnishees. Issues were joined on the pleas of non-assumpsit by Cunningham and nulla bono, as to the defendants. The jury having found for the plaintiffs on the first issue and against them on the second, the record was brought to this court upon an exception taken' at the trial by the plaintiffs.

It appears that Cunningham had agreed in writing, not under seal, to perform certain work on houses of the appellees, according to the specifications and upon the terms therein stated. No time was mentioned within which it was to be completed. lie commenced on the 10th of April 1848, a few days after the date of the contract, and continued the work until October of the same year, after which the witness, who occupied one of the houses during the time that the repairs were made, never saw any more of him. The work was never finished by Cunningham.

By the plaintiffs’ affidavit, and their own proof, it appeared that he had run away before the 13th November 1848. The appellees, on the 10th of November, three or four weeks after Cunningham had stopped work on the houses, employed another person to complete the repairs. The witness stated that Cunningham’s work was very badly done on the front of the house, all the frame being out of square, and the brick houses not near as good work as the house by which they were to have been done, as a pattern.

Evidence was offered as to payments made by the appellees and off-sets claimed by them for loss of the rents during the time Cunningham was engaged on the work, which ii is unnecessary to state. In relation to this part of the case several questions were elaborately argued by the counsel, involving the character and obligations and remedies under the contract, which, if ruled with the appellants, would not change the decision of the appeal, we shall, therefore, express no opinion upon them. The first point for our consideration arises upon an objection by the plaintiffs to evidence offered by the defendants.

It does not distinctly appear how the question was presented below, nor, indeed, what the precise point was upon which the court pronounced its opinion, The objection was made “to the admissibility of the testimony offered to show that Cunningham agreed to do the work.” Thus broadly stated the objection covered too much, because if allowed it would have excluded the contract under which the work had been undertaken by him, which was clearly admissible.

The counsel, however, have argued this point on the assumption, that the objection was made only to Cunningham’s declarations as to the time within which he had agreed to finish the work. Thus restricted, we may possibly be reviewing a point not decided by the court below, and hence the propriety of adhering to the record, for although counsel argued the-question below as they have here, the court may have overruled the objection on the ground that it embraced evidence that was competent as well as some that was not. 3 Gill, 220. In this way injustice is sometimes done to inferior tribunals.

It is not a case of defect in the record which may be supplied by agreement, but one where an exception presenting one proposition is said to have been designed to raise another. In the present case, however, we feel no difficulty on this subject, because the objection was properly overruled even when taken in the limited sense in which the appellant intended to apply it. ■ We gather from the record that it was deemed important Ho ascertain the time within which Cunningham was to have completed his work.

The contract being silent on this point, the law allowed a reasonable time, which could only be ascertained by evidence de hors. The defendants proved that Cunningham said, about the time the contract was entered' into, and afterwards, that he had agreed to finish the work in sixty days. In disposing of this point we must bear in mind the manner in which it was presented at the trial. There is no question of pleading.

It was competent for the-defendants to show that they had not violated their agreement with Cunningham by engaging other persons to complete the work before the expiration of the time within which he was to have done it. To this end they offered, by the testimony objected to, to prove that it was to have been finished in-sixty days, more than that time having elapsed before it was placed in other hands. As a question, merely, of reasonable time, we do not perceive why it should have been rejected. The opinion of any expert would have been received.

The fact that Cunningham had said that he was to do the work in sixty days is evidence that he considered that a reasonable time; and his opinion, if not conclusive, was surely admissible against himself. The evidence merely tended to prove a fact, in regard to which the contract was silent. In 1 Greenlf. Ev., sec. 304, it is said to be well settled, that in a case of simple contract in writing, oral evidence is admissible to show, that by a subsequent agreement the time of performance was enlarged, or the place of performance changed; or that the agreement itself was waived or abandoned.

Also, that it is competent to prove an additional, suppletory agreement, by parol, by which something is sup- V, plied that is not in the contract. The same principle is j recognized in Reed vs. Chambers, 6 G. & J., 490, where a written contract was entered into in relation to land, and subsequently a verbal agreement was made as to the manner in which the title should be secured to the purchaser, it was held, that the parol agreement “was no variation or change of the written contract for the sale of the land, but only indicated the mode in which the title was to be secured.

It was, in effect, to carry the contract into execution, and not to add to, vary, or change it.” See also Watkins vs. Hodges and Lansdale, 6 H. & J., 38. The counsel for the appellant insists, that because “the testimony of defendants was taken subject to exceptions,” it is competent for him to raise any objection here, apparent on the record, that he might have presented below; and, under this impression, he has discussed several points which wo need not decide, because we do not agree that this can be done.

We sit as an appellate tribunal, and, since the act of 1825, eh. 117, can only pass upon what may be decided below. A general reservation of such right to object to evidence sometimes facilitates the trial of the cause, and is allowed for convenience. It secures no right to object here, unless it has been availed of below by specially directing the court's attention to the portions of testimony deemed inadmissible. Then, if the objection be allowed, the court will say to the jury that such proof is not to be considered in the cause; and its ruling either way is the proper subject of appeal.

The plaintiffs’ three prayers, we think, were properly rejected. The first and second claimed compensation for the work and labor done by Cunningham “at the rate and valuation of the contract, deducting from the same the cost of completing the contract,” not taking any notice of the payments that had been made by the defendants to Cunningham, for which he was certainly entitled to an allowance. The appellants’ counsel insists, that there was no evidence of any payment^ made under this contract, but in this we cannot concur.

The defendants offered the contract in evidence, and “also gave in evidence that they had paid as follows to said Cunningham,” (exhibiting an account of their payments.) It does not positively appear that these sums were paid on this contract, but in the absence of proof of other dealings between them, it was competent for the jury to have found that they were applicable in the manner claimed by the defendants. Guy vs. Tams, 6 Gill, 87. These prayers are also obnoxious to other objections.

By them the jury might have compensated Cunningham at the Contract price without having found that he had performed his work according to the contract, because the prayers do not submit that question for their consideration.

Again, if the jury hqd been left to find that the work was done according to the contract, the party was not entitled to that rate of payment when the work had not been so done; even if, under any circumstances, he could have claimed payment upon that basis after having abandoned the work in an unfinished state, subjected the other party to loss, and left him to complete it himself, of which there was evidence before the court and jury. The principle o.f recovery upon a contract is. very different from that upon a quantum valebat or meruit.

By the latter form of action the plaintiff can claim only what, under all the circumstances, his labor or services, or materials, may be worth. In Watchman and Bratt, vs. Crook, 5 G. & J., 263, the court said: “If after work is done, though not pursuant to the contract, the party for whom it is done accepts it, it would seem right and proper that he should pay for it what it is worth.

This justice would require, and the principles of law do not forbid it.” Here the contract stipulated that “all the work should be done in the best manner.” We have seen that the work done was very imperfect and that it was at last left unfinished or abandoned, and the owners injured by the delay. It is impossible that the law can sanction a recovery on the ground of contract, when the claimant has neither performed his part of its stipulations nor shown any reason for his non-performance.

If the doctrine of these prayers prevailed, it would induce injustice and fraud in the community; consequences which it is the duty of courts of justice, as far as practicable, to prevent. Ram on Legal Judgments,

section 9. The third prayer, conceding that it is not imperfect on its face as is insisted by the appellees’ counsel, claims compensation according to the value of the work done and materials found by Cunningham. But it does not require the jury to credit the defendants for payments made by them to Cunningham, for which we think it was properly refused.

The appellants’ counsel, however, suggests, that the counsel who fried the case below left the prayer in a condition for the court to state what deductions it was proper for the jury to allow, and that the court should have granted the prayer, qualified by its view of the law governing the whole case. We do not deem this a ground for reversing the judgment. It is not the duty of courts to insliuet the jury unless appealed to for that, purpose, and then they may grant or refuse prayers as offered, or they may add qualifications, or reject all the prayers and instruct the jury in their own words. See 2 Md.

Rep., 74, Keener vs. Harrod, and the cases there cited. Judgment affirmed.