HORNEY, J., delivered the opinion of the Court.
International Business Machines Corporation (I.B.M. or the supplier) and the Board of Education of Baltimore County (Board of Education) for the use of I.B.M., the plaintiffs below, filed a suit in the Superior Court of Baltimore City against Charles A. Russell, a partnership (Russell or sub-contractor), The Mullan Contracting Company (Mullan or general contractor) and National Surety Company and Maryland Casualty Company (National and Maryland or sureties), the defendants below, for the balance due on the electrical time and fire alarm equipment (usually hereinafter referred to as "equipment") supplied by I.B.M. and installed in the Kenwood Senior High School (Kenwood project or project). When I.B.M. moved for summary judgment, the lower court granted the motion against all of the defendants (except James A. Russell who was not a copartner). From the judgment for $2420.50 ($1937.50 plus interest), Mullan and the sureties appealed.
Mullan, who had sub-contracted with Russell to furnish and install all of the electrical facilities in the project, paid the sub-contractor from time to time while the work was in progress
I.B.M., joining five causes of action in one amended declaration, sued Russell on the simple contract and Mullan, as principal, and National and Maryland, as sureties, on payment and performance bonds. Among other things, it was alleged that the sub-contractor ordered the equipment from I.B.M., promised to pay therefor, received delivery thereof and installed it in the Kenwood project, but failed or refused to fully pay therefor. It was further alleged that the principal as well as the sureties on the bonds, although notified of non-payment, also refused to pay the balance due of $1937.50.
In his deposition, L. Thomas Russell (one of the copartners) testified that the partnership had purchased the equipment from I.B.M. at a total cost of $4367, that the prices charged were fair and reasonable and reflected the then current market prices, and that all of the equipment purchased for the project had been installed therein. He further testified that the "summary invoice" attached to the amended declaration was, to the
In connection with a request for admission of facts and genuineness of documents pursuant to Rule 421, other pertinent facts were established by attaching a true and correct copy of the contract between Mullan and the Board of Education. The basic contract incorporated by reference true and correct extracts of several documents contained in two bound volumes. These, together with forms of the payment and performance bonds, were also attached to the request for admission. The truth and correctness of an omitted rider to one of the bonds was subsequently supplied by stipulation. The request for admission further established that the general contractor and the sureties had been notified of the failure and refusal of the sub-contractor to pay I.B.M.
After the amended declaration had been filed on February 4, 1957, many other pleadings were filed during the ensuing period of nineteen months. But when I.B.M., on September 24, 1958, moved for summary judgment as a matter of law pursuant to Rule 610, the case moved more rapidly to a conclusion. Claiming there was no genuine dispute as to any material facts, the motion was based on the pertinent pleadings, the admissions and the only deposition then on file. Two days later, Mullan and the sureties filed what they termed was an
On October 20, 1958, an affidavit made by Charles H. Feihe (secretary-treasurer of Mullan) was filed in opposition to the motion. Therein the affiant made oath that he had personal knowledge that I.B.M. generally charged all purchases made by the sub-contractor to a running account without designating in which of several projects a particular purchase was to be used, that other projects were in progress subsequent to October 1, 1954, and that the sub-contractor had paid I.B.M. $8360 between October 1, 1954, when the Kenwood materials were shipped, and October 31, 1955, when the last payment was made on account of them, although during that time I.B.M. had charged the sub-contractor with purchases aggregating only $4367. At the summary judgment hearing on October 23, 1958, I.B.M. called the affiant, who was allowed to testify without objection.
On October 22, 1958 — one day before the summary judgment hearing had been set and more than twenty months after
On appeal, Mullan and the sureties raise only one question — that the trial court erred in entering summary judgment — but they assigned a number of reasons to support the contention which appear to fall into four principal categories: (i) those which assert there is a genuine dispute as to material facts; (ii) those which assert the data offered in support of summary judgment was defective and insufficient; (iii) those which assert that I.B.M. was not entitled to judgment as a matter of law; and (iv) that which asserts the allowance of interest on the claim was improper.
The pleadings, admissions, deposition, opposing affidavit, and the oral testimony of the affiant — taken in open court — show that there was no genuine dispute as to any material fact. There were claims that there was no showing of the installation of any I.B.M. materials in the Kenwood project, and that the balance due by the sub-contractor to the supplier was for such materials. The only evidence on this point came from one of the Russell partners, but it was contrary to these claims. Even though the testimony of the deponent was expressed in general terms, it was ample to demonstrate his familiarity with the transactions between his firm and I.B.M. Moreover it was uncontradicted and shows conclusively that the materials in question were used in that project and that a balance of $1937.50 was due and owing for them. The deponent was certain of this fact because at the time the first payment of $419 was made on May 31, 1955, on account of the Kenwood materials, his firm had simultaneously paid I.B.M. in full for all materials used in other projects. In any event, the summary invoice
The further claim that the opposing affidavit of the secretary-treasurer shows a genuine dispute is clearly without merit. For the most part his testimony, allegedly on personal knowledge, was so fully discredited by his own admissions in open court that the affidavit had no evidentiary value to create an issue of fact.
There was also a claim that the facts alleged in the pleas — particularly the special pleas — on which issue had been joined in writing, established a genuine dispute as to material facts. By the first of such of those pleas as are still at issue on this appeal, it was alleged that the sub-contractor had fully paid I.B.M., that such payment had been made from moneys paid by Mullan to the sub-contractor, and that the general contractor had provided and paid for all necessary materials to complete the electrical work. Obviously these pleas do no more than state general allegations that the necessary materials had been provided and paid for. They fail to state specifically how the materials were provided and when and how payment therefor was made. Actually, the basis for two of these allegations is the same as the claim already discussed to the effect that during the period the Kenwood project was in progress the sub-contractor had paid I.B.M., $8360 out of moneys paid to them by Mullan which should have paid in full the $4367 the equipment cost. The short answer to this claim is that these pleas, in order to raise a triable issue of a material fact, would have to have shown in detail and with precision, by facts admissible in evidence, and not by allegations, that there was a genuine dispute. Frush v. Brooks, 204 Md. 315, 321, 104 A.2d 624 (1954). See also Strickler Engineering Corp. v. Seminar, 210 Md. 93, 122 A.2d 563 (1956). Cf. Fletcher v. Flournoy, 198 Md. 53, 81 A.2d 232 (1951), cert. den. 343 U.S. 917 (1952); White v. Friel, 210 Md. 274, 123 A.2d 303 (1956). And see Chambers & Company v. Equitable Life Assurance Soc., 224 F.2d 338 (5th Cir., 1955) ["disclosure (of facts) under summary judgment must be full and complete"]; Bruce Construction Corp. v. United States, 242 F.2d 873 (5th Cir., 1957) ["the adversary (must) adequately demonstrate by receivable
Another plea, predicated on the theory that I.B.M. had to supply both labor and materials in order to recover, raised a question of law. We think it is so obvious that the bonds cover either those supplying labor or those supplying materials or both that this contention ought to be ignored. In any event, no authorities were cited to support the proposition and we know of none directly in point. See, however, Code (1957), Art. 63, § 1, which states that a mechanics' lien may be obtained for work done and materials furnished. See also Standard Ins. Co. v. U.S., 302 U.S. 442 (1938), where, in a suit on a bond given to protect all persons supplying "labor and
Lastly, there were the "estoppel" pleas to the effect that I.B.M. is now estopped to assert its claim against Mullan and the sureties because it failed to do so before the institution of bankruptcy proceedings against the sub-contractor and that Mullan had changed its position. These, too, except as noted below, raised only a question of law. No authorities were cited on the estoppel question, and we know of none. Certainly Tompson v. Winterbottom, 154 Md. 581, 141 A. 343 (1928), cited by the general contractor and sureties, is not in point. The closest cases we have found in this area are mechanics' lien cases where it has been held that mere silence by the creditor when he knows that the contractor is not paying him and that the contractor is being paid by the owner does not amount to an estoppel precluding the creditor from claiming a mechanics' lien. See Caltrider v. Weant, 147 Md. 338, 128 A. 72 (1925); Mivelaz v. Genovely, 121 Ky. 235, 89 S.W. 109 (1905). The allegation as to a change of position, failed to allege facts showing in what manner Mullan had changed position to its prejudice, and for that reason, as previously stated, was ineffectual.
Finally, Mullan and the sureties complain that I.B.M.'s demurrers to certain pleas, subsequently abandoned, were never argued or specifically passed upon by the lower court. We are at a loss to understand the purpose of this complaint. In any event an examination of the demurrers shows that no question or point of law was therein presented which will not have been considered in this opinion.
We think it is clear that all of the matters relied on by the general contractor and sureties to show a genuine dispute as to material facts created only a formal or potential dispute which was lacking in substance.
The data offered in support of summary judgment was not
The general contractor and sureties concede that the deposition was "possibly" admissible against the sub-contractor as an admission of the balance due to I.B.M., but they contend that the deposition was not sufficient to sustain the motion since
I.B.M. was entitled to a judgment as a matter of law. Once it has been established, as the trial court properly stated, that the sub-contractor was indebted to the supplier in a case such as this, the liability of the general contractor and its sureties is clear. The liability is based on the provisions of the payment and performance bonds. One — the payment bond — provided that the general contractor, as principal, and his sureties should "promptly make payment to all persons supplying labor and material in the prosecution of the work." The other — the performance bond — obligated the principal and sureties to "well and truly perform and fulfill all of the undertakings, covenants, terms, conditions and agreements of * * * [the] contract, which, among other things, provided that the "[c]ontractor [should] provide and pay for all materials * * * necessary for the execution and completion of the work" in connection with the installation of the wiring and signal systems. On these bonds and contract provisions the judgment below was properly entered. Board of Education v. Lange, 182 Md. 132, 32 A.2d 693 (1943); Lange v. Board of Education, 183 Md. 255, 37 A.2d 317 (1944); United States Fidelity & G. Co. v. Housing Authority, supra. See also Kirby & McGuire, Inc. v. Board of Education, 210 Md. 383, 123 A.2d 606 (1956).
The allowance of interest was proper. Ordinarily, the allowance of interest is a matter which rests in the discretion of the trier of the fact. Shoop v. Fidelity & D. Co., 124 Md. 130, 91 A. 753 (1914). See also Baltimore City Pass. Rwy. Co. v. Sewell, 37 Md. 443 (1873) [interest is a question for jury to decide according to the equities of the transaction].
Since the lower court allowed interest in the sum of $483 instead of $234.44, the judgment of $2420.50 will be reduced to $2171.94, and as modified will be affirmed.
Judgment reduced from $2420.50 to $2171.94, and as modified affirmed; the appellants to pay the costs.
C.A. RUSSELL Order No. Order Date Shipment Date Invoice Amount E. 18084[**] 10.21.53 10.1.54 $4367.00 Date Paid Check No. Invoice Date Invoice No. Check Amount 5.31.55 9291 10.1.54 E 18084 $ 419.00[***] 6.30.55 9422 10.1.54 E 18084 1000.00 8.31.55 9570 10.1.54 E 18084 500.00 10.31.55 9727 10.1.54 E 18084 500.00 4.30.56 C/M No. 1514 10.1.54 E 18084 10.50 Cr. Total Paid ......................... $2429.50 Total Due .......................... $1937.50
[**] C.A. Russell Order No. 2990; Job No. 953 (Kenwood High School).
[***] Actual check amount of $500.00 — $81.00 was used to clear invoice No. E 23094.