ERROR to the Circuit Court of the District of Columbia and county of Washington.
This case was argued by Brent, Jr., for the plaintiff in error; and by Bradley, for the defendants.
DANIEL, Justice, delivered the opinion of the court.
This case arises under the attachment law of the state of Maryland, passed in 1795; and comes before this court upon a writ of error to the circuit court of the district of Columbia, for Washington county; within which the law of Maryland above mentioned is in force. The proceedings instituted in this case, although commencing by an attachment, and upon what is termed a short note, in lieu of a formal declaration, assume, nevertheless, the essential character, and in some respects, the usual forms of the action of assumpsit, and must be governed by the rules applicable to such an action. The defendants dissolved the attachment, by appearing and entering special bail, and pleading non assumpsit; and upon the issue made up on this plea, the cause was tried in the circuit court.
Upon the trial, exceptions were taken, in five separate instances, to the rulings of the circuit court, and in each of them, the exception sealed by the judges is made a part of the To test the accuracy both of the decisions thus pronounced, and of the objections alleged against them, it will be necessary to advert to the facts adduced in proof.
It appears, that on the 23d of August 1832, the defendants in error entered into a covenant with the Chesapeake and Ohio Canal Company, for certain rates and prices stipulated in a covenant sealed between the defendant and the company, by their president, and in a specification appended to the said covenant, to construct, in a substantial and workmanlike manner, culvert No. 116, on the 150th section of the Chesapeake and Ohio Canal; and to prosecute the work upon the said culvert, without intermission, with such force as should, in the opinion of the resident engineer, secure its completion by the first day of August 1833. On the 3d day of November 1832, a covenant was entered into between the plaintiff in error and the defendants, or rather with Riah Gilson, one of the defendants, styling himself superintendent for Gilson & Company, by which the construction of the culvert, No. 116, was let to the plaintiff, at the contract prices to be paid by the company for the work; with the exception that Fresh should pay to the defendants, from whom he took this contract, the sum of $100, which sum appears to have been a profit reserved to themselves by the first contractors, upon the transfer of their undertaking. In this second covenant, the plaintiff in error bound himself 'to be urgent in the performance of the work, so that it might progress in accordance with the specification and directions of the engineers.' And further, that in the event of neglect or failure on his part, the defendants should have authority to declare the work abandoned, to asume the direction, and to complete it at the plaintiff's expense. Having thus obtained a contract under the defendants, the plaintiff, on the 2d day of May 1833, made an agreement with Elijah Barret, for building of this culvert, by the latter; stipulating to pay Barret the price of one dollar, twelve and a half cents for every perch of stone-work of twenty-five cubic feet, upon a certificate and approval of the engineer or superintendent of masonry as to the fidelity of the work. The plaintiff, on the trial, offered these several contracts in evidence; also an account against the defendant, stated on the 24th of December 1833, for masonry, excavation and paving performed, and for cement not supplied by the plaintiff in the construction of culvert 116; on which account, after allowing a credit of $1142.73, a balance of $1343.01 was claimed. This was the account on which the warrant of attachment issued. The plaintiff further proved the delivery of the letter, dated December 25th, 1833, adressed by him to Wells, the agent of the defendant, in which he required a statement of his account with them, and expressly forbade the payment to Elijah Barret of any amount whatever.