# Noel Construction Co. v. Armored Concrete Construction Co.

> Court of Appeals of Maryland · April 8, 1913 · 120 Md. 237

URL: https://www.frixlaw.com/law-library/cases/3482592

## Case

- **Full name:** Noel Construction Company v. . Armored Concrete Construction Co.
- **Court:** Court of Appeals of Maryland
- **Decided:** April 8, 1913
- **Citations:** 120 Md. 237; 87 A. 1049; 1913 Md. LEXIS 148
- **Precedential status:** Published
- **Opinion:** Addendum
- **Judges:** Boyb, Boyd
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3482592

## Opinion text

The motion for a re-argument and for a modification of the judgment filed in this case must be overruled. There is nothing in the opinion to justify the statement of the counsel for the appellee, in his brief on the motion for re-argument, *Page 253
that this Court had said that the spandrel beams had been encased in brick in advance of the work which would properly be done before they were so encased. In speaking of the testimony of the witness that "This work at the time of the conversation was pretty well up. I don't remember how high, but it was about two-thirds finished" we said: "It is manifest from what appears in the record the witness was then speaking of the work on the building, and not on these particular spandrels, and that they had then already been encased in brick." We called attention to the fact that the contract price for the work to be done by the appellee was $125,000, while that for the whole building entered into by the appellant was $3,295,000, and we referred to other testimony to show that according to the record the work on the spandrels in question had been completed when the conversation took place. After the witness had explained to the lower Court that the drawings showed where there was to be tile, brick, concrete, and so on, the following appeared in the record: "Q. Was anything omitted in that respect, Mr. Volkman? Of course, if the drawings called for brick you omitted nothing, but how was that work done? The Witness : On those spandrels? Mr. Harley : Yes. A. They were encased in brick, that is those in question. Q. Was there any question about it at the time? A. No, there was nothing said to me about it . Q. Afterwards was there any discussion about it with the superintendent or Mr. Noel? A. Why, yes; the bricklayers' foreman for the Noel Construction Company followed his drawings, he did not use any specifications at all, so he told me — " At that point Mr. Bartlett objected, and said: "We ask that the answer be stricken out," and Mr. Harley said: "Strike it out until I have asked these other questions," and then proceeded to ask other questions, which finally resulted in the first exception. The italics in the above are ours.
We would greatly regret a reversal of the judgment based on a misunderstanding of the facts, and would not hesitate *Page 254
to correct such an error, if made by us, but the Court in consultation and the writer of the opinion when he prepared it gave this exception special consideration, by reason of the fact that it was the only reversible error we found. After thoroughly considering the question as presented by the record, as well as the authorities, we felt constrained to adopt the conclusion we did, and have since found no reason to change it. So far as the statement in the brief in support of the motion that everybody understood what the facts were, it is only necessary to add that the attorneys for the appellant distinctly urged and relied on the point in argument and in their brief, and cited some of the authorities we referred to. As we indicated in the opinion, when a party seeks to introduce admissions made by an agent out of the presence of the principal the burden is on him to show that they were made at a time when and under such circumstances as they can properly be used against the principal. If the testimony quoted above does not show that the alleged statements were made after
the spandrels in question were encased in brick it would be difficult to understand what it does mean. It may be that the attention of the learned judge below was by reason of the ground assigned for the objection to the evidence not directed to this point, but if it was admissible, it matters not whether the reason assigned in argument was a valid one.
It ought not to be necessary to cite authorities to show that this Court could not have credited the judgment obtained by the defendant with $4,500.00, and then have directed a judgment to be entered for the balance of the verdict. It did not determine, and could not have determined, as the case was presented, whether the $4,500.00 could or could not be recovered by the plaintiff. Whether it had the right to recover it was left to the jury, under the instructions of the Court, and all that we determined on that question was that the evidence referred to in the first bill of exceptions was erroneously admitted. It was not merely cumulative evidence, but was offered as an admission by the plaintiff's agent or *Page 255
agents. The jury may or may not have allowed the $4,500 to the plaintiff. In the defendant's claim, which was given to the jury as pointed out in the former opinion, it alleged that there were filed what it called "Plaintiff's overcharges," amounting to over $19,000.00, and what it called "Plaintiff's failures to credit" amounting to over $24,000.00. There were a number of items under those respective heads, including under the first the spandrel beams, etc. Just which or how much of those respective items claimed by the plaintiff, amounting to over $19,000.00, or of the credits claimed by the defendant, amounting to over $24,000.00 the jury allowed in reaching the verdict it is impossible to say. The total claim of the plaintiff, after deducting three items eliminated by the prayers, amounting to $35,514.86, and that of the defendant amounted to $43,501.04. If then, instead of pursuing the course we did, we had directed the verdict in favor of the defendant to be credited with the $4,500.00, it would not only not have been justified by any statute or authorities in this State, but might have done the defendant, as well as the plaintiff, an injustice to the extent of that amount, as it may not have been allowed by the jury, and, if it was, it was for the jury and not for the Court to pass on.
As the defendant has since come into this Court and offered to file a remittitur for the amount, the only remaining question is whether we can properly allow it, and end the case. If we adopt the authorities outside of this State which were cited by the appellee, they can not help it. In reference to 3 Cyc . 436, we have not said that the jury allowed the defendant too much by reason of an erroneous instruction or by reason of the improper admission of evidence. From what we have said above it will be seen that we can not determine whether this particular item was or was not allowed the plaintiff, and we have not said it could not have been properly allowed by the jury under the evidence which was not objected to, but because in our judgment evidence that was inadmissible was admitted and we can not say that its admission was not injurious we were compelled to hold as we did. *Page 256
In 38 Cyc . 1439 (also relied on by the appellee) it is said: "The erroneous admission of evidence bearing on the measure of damages is cured by a remittitur of the largest sum that the jury could have awarded under such evidence. But where there is no possibility of showing to what extent the jury were influenced by such improper evidence, the error is not one which can be cured by remittitur."
The appellee's reliance on Article 5, § 15 and 5, § 17, and Article 26, § 14 of Code of 1912 is sufficiently answered by Frank v. Morrison, 55 Md. 409 , where it is said: "For this error in the plaintiff's prayers, it is conceded the judgment must be reversed and a new trial awarded, unless this Court has power to modify the judgment, as the appellees' counsel have suggested. In their brief they offered to remit the amount of interest allowed by the jury, and asked that the judgment be modified accordingly. But, in our opinion, no power has been conferred upon the appellate Court to make the proposed modification. The judgment in the Court below upon the verdict is entirely correct, and the case does not fall under section 14 of Article 5 or sections 39 and 40 of Article 29 of the Code" — referring to Code of 1860. The cases of Kendrick v. Warren, 110 Md. 73 ; Kent v. Lyles, 7 G. J. 73, and Ecker v. Bank, 64 Md. 296 , referred to do not in our opinion reflect upon the question. This Court can not say that a judgment for the defendant for the amount of the verdict less the $4,500.00 ought to have been given by the Court below, and there is nothing in the Code to authorize this Court to enter up such a judgment. Of course if the plaintiff agreed to a judgment being entered for such amount that could now be done in the lower Court, or we could then consider our right to entertain such an agreement. It is certainly desirable for both of these parties to avoid another prolonged trial, if it can reasonably be done, and it is not the desire of this or the lower Courts to have such trials, if they can be avoided, but we can not exceed our powers in order to bring litigation to an end.
Motion for re-argument and for modification of judgment overruled . *Page 257

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3482592. Public record. Not legal advice.