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February 25, 1952

FEUZ CONST. C., Inc. et al.

The opinion of the court was delivered by: KEECH

This case is before the court on objections to proposed findings of fact, conclusions of law, and judgment, and on a motion by the garnishee to reopen the case for further testimony on its behalf.

The background of the case is, briefly: The plaintiff Rue, who holds a judgment in the sum of $ 4,500 against the defendant, Feuz Construction Company, issued an attachment of funds to the credit of the defendant Feuz in the hands of the garnishee, Second National Bank of Washington. The Bank answered that it could not determine in what amount it was indebted to Feuz 'because of terms of contract, performance of which is incomplete, and because of pendency of U.S. tax levy for $ 2,669.93, plus interest from 9-19-49 and of assignment by Feuz Construction Co. in favor of Waller Paving Co. in the sum of approximately $ 9,000, original amount.' The case came on for hearing on the traverse by the plaintiff to the garnishee's answer.

 The facts brought out by the record made at the trial were: On June 27, 1949, the Feuz Construction Company entered into a subcontract with Walter B. Avery for excavating, filling topsoil, grading, seeding, and sodding, to be done in accordance with the plans and specifications incorporated in the prime contract of Walter B. Avery with the Board of Education of Montgomery County, Maryland, for construction of five schools and landscaping of the adjacent grounds. On August 14, 1949, Walter B. Avery died, and the work under the prime contract was completed by the Second National Bank of Washington, executor of the will of Walter B. Avery and garnishee in this action. The subcontract of Feuz provided certain time limits on the various portions of its work, and that the contractor should have the right, at any time, to delay or suspend the commencement or execution of the whole or any part of the work, with an extension of the time for completing the whole work equal to the period of such delay or suspension. The subcontract further provided Feuz should do the work in a thoroughly workmanlike manner to the satisfaction of the contractor and owner and in strict conformity with the prime contract, as supplemented by the plans and specifications.

 Feuz proceeded with the work under the subcontract without default, in accordance with the plans and specifications and in a workmanlike manner until December 7, 1949, at which time a substantial part of the subcontract had been performed and Feuz was ordered by the Bank to cease work until further notice, in view of the fact that it was essential that certain phases of the construction be completed before Feuz might finish the final items of its subcontract. The work was suspended until March 3, 1950, when the Bank ordered Feuz to resume work. Feuz prepared to go forward with the work, but thereafter, at the Bank's request, agreed to permit the Bank to complete the relatively small amount of work remaining under its subcontract. It was orally agreed that $ 7,000 would be the maximum amount necessary to complete the job, but this stipulation was not included in a written memorandum signed by the parties on April 12, 1950, which on its face is only a partial memorandum of the agreement of the parties. In completing the subcontract the Bank charged against the Feuz account the sum of $ 17,991.55, representing expenses allegedly incurred in completing the landscaping after April 12, showing a balance due Feuz of only $ 414.60. The expenditure of this excessive sum was not necessitated by any failure of Feuz to perform its work under the subcontract in accordance with the plans and specifications or in a thoroughly workmanlike manner. On the contrary, in completing the job the Bank plowed under and reseeded many of the areas seeded by Feuz, changed some grades and put in sod in excess of the contract requirements.

 The plaintiff failed to prove that a figure less than $ 7,000, the agreed maximum, would have completed the unfinished portion of the subcontract in conformity with the plans and specifications.

 The original contract price under the subcontract was $ 42,500 and agreed extras prior to April 12, 1950, $ 4,982.56. Prior to April 12, Feuz received credits totalling $ 30,076.41. Prior to April 12, two items in the amounts of $ 550 and $ 104.65 were admittedly charged by error against the Feuz account.

 There was no contest of the United States tax levy of $ 2,669.93, plus interest from September 19, 1949, and there is filed in this case a settlement of the assignment of the Waller Paving Company for the sum of $ 1,000 to be paid out of any amount found due the Feuz Company from the Second National Bank under its subcontract.

 The trial of this case extended over a period from January 23 to 28, inclusive, taking up the equivalent of three entire court days. Ample opportunity was afforded both parties for the presentation of all pertinent evidence and protracted argument of counsel. At the conclusion of the argument, the matter was treated by the court as submitted. After consideration thereof, on February 1, proposed findings of fact and conclusions of law, finding the sum of $ 12,060.80 due under the Feuz subcontract and held by the garnishee, were prepared by the court and submitted to respective counsel.

 Counsel for the garnishor submitted a proposed order in conformity with the court's findings. On February 12, 1952, counsel for the garnishee met with the court and counsel for the garnishor, and interposed objections to certain findings of fact and to the conclusions of law. The garnishee's objections are in substance an objection to the judgment of the court. Counsel also orally moved the court to reopen the case for the purpose of receiving additional testimony, the general purport of which was embraced within three affidavits presented to the court. Counsel for the garnishor objected to the motion to reopen the trial.

 The effect of the affidavits was to refute the court's finding on the testimony of record that at the time the garnishee bank took over the Feuz subcontract it was agreed that the maximum amount which would be chargeable to the account of the Feuz Company for work done in completion of the subcontract should be $ 7,000. This motion was subsequently reduced to written form and filed February 13, 1952, incorporating the affidavits by reference. It was agreed that the garnishor's objections to a reopening of the case applied to the written motion.

 Counsel for the garnishee at the time of presenting the affidavits urged that reopening of the case is within the discretion of the court.

 The garnishee in his written motion asks that the court reopen the proceedings for the purpose of receiving further evidence on behalf of the garnishee upon certain 'critical issues,' and as grounds therefor states:

 '1. The tentative decision of the Court that a contract and agreement was made on April 12, 1950, whereby the Executor undertook to complete the performance of the Feuz contract and further bound itself not to charge any more than $ 7,000.00 in that connection, has come as a surprise to the Garnishee and its counsel.

 '2. The evidence as heretofore adduced is insufficient to sustain a finding that such a ...

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