105 A. 893
Court of Appeals of Maryland.
Decided April 5th, 1918.
Contractors on public works: liability of surety; agreement with new contractor to complete the work; construction. Inadmissible testimony: when no error. Oral conversation and written contracts.
A contractor engaged on a public work in the City of Harrisburg failed in his performance, and the Surety Company upon his bond undertook to complete the work; by agreement between the Surety Company and the new contracting firm, the appellant, the new contractor, was to perform all the work remaining unfinished under the original contract, and it was agreed that the work should be completed according to the original specifications and paid for at an increased scale of unit prices; in other words, the appellant was to be paid all the money received by the Surety Company from the city and such an additional sum as might be necessary to make up the balance of compensation according to the new scale specified in the agreement with the Surety Company held, that, under this agreement the appellant was not entitled, besides such sum, to receive the retained percentage that had been withheld by the city from the original contractor, but had been subsequently paid by the Surety Company. p. 699
It was further held, that the defective work of the original contractor which the defendant had built over was “unfinished work,” within the meaning of the agreement with the Surety Company, for which the appellant was entitled to be paid, but only at unit prices of compensation which that contract provided.
Page 700
The admission of inadmissible testimony is not a reversible error when it contains nothing to the prejudice of the exceptant’s case. p. 700
Oral conversations of representatives of the parties prior to an execution of a written agreement, in which their negotiations are merged, are inadmissible evidence to vary the contract. p. 700
Decided April 5th, 1918.
Appeal from the Superior Court of Baltimore City. (DOBLER, J.) Where there was a verdict and judgment in favor of the plaintiff for $1,307.25, from which judgment the plaintiff took this appeal.
The cause was argued before BOYD, C.J., BRISCOE, THOMAS, URNER and CONSTABLE, JJ.
J. Kemp Bartlett (with whom was Guion Miller, on the brief), for the appellant.
Charles T. Reifsnider and Walter I. Clark, for the appellees.
URNER, J., delivered the opinion of the Court, affirming the judgment below, with costs.
Page 701