knowledge. Given the facts as to the sub-court has found such waiver. This is a findstantial completion of the work as the court ing of fact, and one which, in view of the has found them and as they must stand, it evidence, we may not disturb. Chatfield v. would be difficult to escape the conclusion O'Neill, 89 Conn. 172, 175, 93 Atl. 133. of knowledge on the part of the architects which the court below drew. It certainly was a reasonable and legitimate one. From it the ultimate conclusion that the plaintiff was not chargeable with the certified amount follows naturally and as a matter of course. It is said that the certificate of the architects should not have been rejected in toto even upon assumption that there was bad faith in the inclusion in it of improper items. It is to be remembered that the certificate is pleaded as under the contract conclusively binding the plaintiff to the payment of the amount certified. The bad faith found simply avoids that effect, and takes away from the certified amount the element of adjudication. The parties are not thereby deprived of their rights or relieved of their obligations as they may be disclosed by the evidence. Those rights and obligations came under consideration in the determination of the amount that the plaintiff is entitled to receive for the work done and in view of that undone. [10] In this connection notice should be taken of a claim of counsel for the defendant which appears at this and several other points in their argument, including the discussion of objections to the admission of testimony. They contend that the defendant is entitled to repayment for the expense in fact incurred by it in correcting the faults existing in the work and accomplishing completion. That would be true if the termination of the plaintiff's employment had been rightful and the required certificate had been given. The contract so provides. But here the termination was wrongful. The provisions of article V, therefore, are not applicable to this situation, and the defendant's remedy for nonperformance is that provided by the ordinary rules of law, to wit, a deduction or allowance from the contract price for the finished work of such sum as represents a fair and reasonable cost of repair and completion. Other assignments of error of minor importance do not, in view of our conclusion, call for consideration. There is error, and a new trial is ordered. THAYER and RORABACK, JJ., concurred. WHEELER, J. (concurring). I concur in the result and with the reasoning of the opinion, except in the particulars herein discussed. The complaint alleges that the plaintiff furnished materials and rendered services in the construction of defendant's building under an agreement, made a part of the complaint, which were reasonably worth $18,573.72, and $13,616.58 represents a balance due on the contract as provided therein. The complaint does not allege in terms that the plaintiff completed the contract. Other allegations necessary under the statute in a case praying for the foreclosure of a mechanic's lien are found in the complaint. The opinion holds that the allegations of this complaint are sufficient to support a judgment of foreclosure “whether it be that the plaintiff performed its contract, or substantially performed it, or was prevented by the defendant from performing it." Healy v. Fallon, 69 Conn. 228, 234, 37 Atl. 495, is cited as authority that a complaint, alleging a completed contract, would support a judg. ment of foreclosure upon the basis of a substantial performance. We do not understand the case to hold further than this: "The defendants * asked the court, in effect, by their pleadings, to try the question whether the plaintiff had performed his contract, and, if not, whether anything, and, if so, what amount, was due to him." And hence the court permitted a recovery upon proof of a substantial performance. We know of no decision in our state upon this point. We find decisions elsewhere which require specific allegations of substantial performance. We do not see how a defendant will be prejudiced by the adoption of the rule of pleading stated in the opinion. When we go further and hold that under al [11] Turning now to the second matter embraced in the counterclaim, it is to be observed that the defendant would not be permit-legations of a completed, or a substantially ted, in any event, to have redress for delay in completion by the enforcement of the contract provision for liquidated damages, and at the same time to avail itself of the provisions of article V. Resort to the latter precludes resort to the former. New Haven v. National Steam Economizer Co., 79 Conn. 482, 492, 65 Atl. 959. [12] The defendant, however, does not in the present state of the case, encounter that obstacle to the presentation of its claim for liquidated damages. The plaintiff, in its reply to this counterclaim, alleged a waiver completed, contract the plaintiff may recover for a partial completion upon proof that the owner prevented him from completing his contract, we inject into the case an element of which the complaint gave the defendant no notice. Such a rule of pleading may result in serious prejudice to a contractee. It is contrary to the spirit of our Practice Act, and the authorities appear to forbid it. Estes on Pleading, § 323; Wolfe v. Howes, 20 N. Y. 197, 75 Am. Dec. 388; Lawson v. Hogan, 93 N. Y. 39; Robinson v. Chinese Charitable Ass'n, 47 App. Div. 69, 70, 62 N. Y. to Cutter v. Powell, Smith's Leading Cases, contract. As we understand the rule laid p. 53, say: "In cases of prevention by the party, or of tender and refusal, the plaintiff has a right of action on the special contract, prevention or refusal being equivalent for that purpose to performance; but in this case he must de clare specially and set forth the readiness or tender and refusal or prevention." Cases cited Id. 27 Cyc. 380. tween it and Pinches v. Church, and that each had its own measure of recovery. We said: down in our decisions, the plaintiff thereafter had the right to treat the contract as rescinded, and upon proper allegations recover on a quantum meruit for the work and labor performed, together with the special damage suffered, or it might have brought its action for damages against the defendant for its breach of the contract. We pointed While the complaint does not in terms al-out in Valente v. Weinberg the distinction belege the completion of the contract, it does allege that the plaintiff commenced and finished furnishing materials and rendering services according to the tenor of the contract, and that the architect wrongfully refused to give the certificate of completion. We think the pleader intended to allege a completed contract. This is now of no importance, since the plaintiff now claims, and the defendant apparently acquiesces, that the complaint may be construed as setting up a claim arising out of the contract, and one based upon the reasonable value thereof by virtue of a substantial performance of the contract. "The present case is within the exception which permits a recovery by the contractor when the other party has incapacitated himself to perform his part of the contract, or prevented the contractor from performing his." In such case, we held the measure of recovery is not the contract price, less the cost of completing the contract, but the reasonable value of the services and materials furnished, or just damages for the breach. Valente v. Weinberg, 80 Conn. 134, 135, 67 Atl. 369, 13 L. R. A. (N. S.) 448. Again in Hoyt v. Pomeroy, 87 Conn. 46, 86 Atl. 757, we said: The trial court has found a substantial performance, a conclusion which upon the subordinate facts found seems to be consid"When one party without fault on his part is erably in advance of any heretofore reached prevented by the other from completing the in our decided cases. In an ordinary case contract, he may treat it as rescinded and reof substantial performance the rule of Pinch-cover on quantum meruit for the part performed, or sue for damages for the breach of the cones v. Swedish Lutheran Church, 55 Conn. tract." 183, 187, 10 Atl. 264, 265, governs, that: "Services rendered and materials furnished under a special contract, but not in entire conformity with it, provided that the deviation from the contract was not willful, and the other party has availed himself of, and been benefited by, such labor and materials" Some authorities hold that the measure of damages is the value of the services, plus the damage sustained by the refusal to allow performance. Phillips on Mechanics' Liens, § 139; Cutter v. Powell, 2 Smith, Leading Cases, Hare and Wallace, notes p. 44. Certainly this rule measures the actual loss. But so do those we adopted in Valente v. Weinberg, and these are those generally adopted by the authorities in an action where performance of a special contract has been prevented by the party from whom the recovery is sought. a "In such a case," the Supreme Court of Massachusetts say, "the innocent party may either sue on the contract for damages for the breach, or, if he so elects, he may regard the action of the defendants as indicating a purpose on their part to repudiate the contract, may accept the repudiation, and recover upon quantum meruit the value of his services as if the special contract had not existed." Posner v. Seder, 184 Mass. 331, 333, 68 N. E. 335; Bailey v. Marden, 193 Mass. 277, 279, 79 N. E. 257; Moore v. Normal School Dist., 215 Mo. 705, 115 S. W. 6; Philadelphia v. Tripple, 230 Pa. 480, 79 Atl. 703; 40 Cyc. 2830. -may be recovered for to the extent of the benefit conferred, having reference to the contract price for the entire work. "In cases where only some additions to the work are required to finish it according to the contract, or where, as in the case of Blakeslee v. Holt [42 Conn. 226], the defects in it may be remedied at a reasonable expense," the recovery will be the difference between the balance due under the contract and what it would cost to complete the contract. The trial court and the majority opinion place this case within the class last referred to. The plaintiff did not offer to prove the reasonable value of the work done and materials furnished. The court determined the amount of its judgment by deducting the sum for which the defects and omissions could have been done for from the balance due on the contract, thus adopting the rule of Pinches v. Church. This rule is an exIn the case of substantial performance of ception to the general rule. The majority a contract, it is just that the contractor opinion sustains this ruling. We do not should get the benefit of his contract, and it controvert either the authority or the justice is just that the contractee should not be of this rule. We think the facts of this case obliged to simply pay the value of the work make it inapplicable, and that it falls within done, for he may have made a good contract another exception to the general rule. The for himself. Hence the measure of recovery, finding is that the defendant wrongfully doing best justice to each party to the con See cases cited in Valente v. Weinberg. would cost to complete the work as agreed. Blakeslee v. Holt, 42 Conn. 226, 229. (87 N. J. Eq. 365) ALLEN v. MOORE et al. (No. 85.) March 5, 1917.) Appeal from Court of Chancery. Petition for construction of will by Frank B. Allen, as executor of the estate of George D. Moore, deceased, against Harriet E. Moore and others. From the decree (98 Atl. 420), both parties appeal. Affirmed. Alfred F. Stevens, of Newark, for appellant. Benjamin J. Fleuchaus, Pitney, Hardin & Skinner, and McCarter & English, all of Newark, for appellees. But where the contractor has been pre- (Court of Errors and Appeals of New Jersey. vented from completing his contract, the added element of fault on the part of the contractee is present. Under such circumstances, should the contractee, who has prevented the completion of the contract, and who may have made a contract very advantageous to himself, be compelled to pay merely the contract price, less the value of the defective or omitted work? Or should the contractor, who is not in fault, be permitted to recover either damages for the breach which would give him the profits of his contract, if any, or the reasonable value of the work done if the contract was an unprofitable one for him? The contractee has breached his contract; therefore the law has deemed it just to give the contractor the option of these remedies, and this we conceive to be the reason for the adoption of these measures of recovery by the authorities generally and by us in Valente v. Weinberg, supra. The majority opinion states that Valente v. Weinberg is not a case of substantial performance, and that the rule there adopted applies to a case of wrongful prevention when there has been no substantial performance. But the court, in that case, in stating the claim of the plaintiff to which it applies the rule it adopts, says, on page 135 of 80 Conn., on page 369 of 67 Atl., 13 L. R. A. (N. S.) 448: "The plaintiff claims that after he had nearly completed the building the defendant unlawfully ejected him from the premises and prevented his completion of the contract." We conceive no proper legal distinction between the substantial performance of a contract and the "nearly completed performance" of a contract. By adopting such a distinction, we should have a different measure of recovery for each, and this the majority opinion contemplates. We feel that this ruling will add to the difficulties of the trier and to the uncertainty of the law. When could a contract be said to be sub PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice Chancellor Foster. (129 Md. 686) STATE to Use of BIGGS et al. v. MAYOR (Court of Appeals of Maryland. Jan. 10, 1917.) In an action against a city for death of plaintiff's intestate alleged to have been caused by a fall into the water due to defendant's failure to properly protect the street at a point overlooking a dock, whether defendant was negligent in failing to furnish sufficient light and warning to enable travelers passing at night along the street to see that it ended at the dock held for the jury. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1749; Dec. Dig. 821(14).] 2. MUNICIPAL CORPORATIONS LIC STREETS-DUTY OF CITY. 757(1)-PUB It is the duty of a municipality to keep its streets in a safe condition for public travel, and, if it negligently fails to do so and travelers upon the street are injured without negligence on their part, the city is liable in damages. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1591; Dec. Dig. 757(1).] Whether deceased was guilty of contributory negligence held for the jury. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1754; Dec. Dig. 821(22).] stantially performed and when nearly completed? If the rule of Valente v. Weinberg applies only to cases of prevention of ful-3. MUNICIPAL CORPORATIONS 821(22)—Acfillment when the contract has not been subTION FOR INJURIES-DEFECT IN STREETS QUESTION FOR JURY. stantially performed, it follows that in the case of a partial performance, when the contractee has prevented complete performance, two remedies are given, while in the case of a substantial performance when the contractee has prevented complete performance one remedy is given, and that is the equivalent of one of the remedies given in the case of a partial performance, viz. damages for breach of contract. Why treat the case of a partial performance better than the case of a substantial performance? We are unable to agree with the majority opinion in so doing. TUTTLE, J., concurred. 4. WITNESSES 37(1) COMPETENCY KNOWLEDGE OF FACTS. A witness, who was present on the night of ceased from the water, and who had an opportu the accident and assisted in removing the denity of observing the conditions and had been familiar with the place and surroundings for 18 years, was competent to testify in relation to the condition of the dock on the night of the accident. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 80, 83-87; Dec. Dig. 37(1).] 5. MUNICIPAL CORPORATIONS TION FOR INJURIES-DEFECT IN STREETS Whether the proximate cause of the death of the deceased was the shock and exposure resulting from his fall into the water from the dock held for the jury. 821(19)—Ac-| ous condition of Bush street was due to the negligence and carelessness of the defendant, its agents and servants; and that Albert Biggs at the time of the happening of the events hereinbefore mentioned in no wise contributed to the accident. At the conclusion of the testimony on the part of the plaintiff, the court below granted the defendant's second and fourth prayers, withdrawing [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. § 1753; Dec. Dig. 821(19).] Appeal from Baltimore City Court; Hen- the case from the jury, first, upon the ground ry Duffy, Judge. "To be officially reported." Action by the State of Maryland, to the use of Daisy A. Biggs, widow, and others, against the Mayor and City Council of Baltimore City. Judgment for defendant, and plaintiffs appeal. Reversed, and new trial that there was no evidence legally sufficient to prove any negligence upon the part of the city, and, secondly, that it appears from the undisputed evidence that the deceased did not exercise reasonable care to avoid the acci dent, but by his own negligence contributed directly to the injuries which resulted in his death, and that under the pleadings the verdict of the jury must be for the defendant. The action and ruling of the court in granting these prayers, directing a verdict for the defendant, constitutes the plaintiff's sixteenth exception, and, as this exception presents the principal propositions of law in the case, it will be passed upon by us before, considering the other questions raised by the exceptions to the rulings of the court upon evidence. Was the court right in holding as a matter of law, under the evidence set out in the record and in so instructing the jury: First, that there was no evidence legally sufficient to prove any negligence on the part of the defendant; and, secondly, in ruling that under the undisputed evidence the deceased by his own negligence contributed directly to the injuries which resulted in his death. The solution of these questions involves and requires an examination and statement of the material facts, as disclosed by the record. The rules of law bearing upon negligence and contributory negligence have so often and recently been announced by this court as to admit of but little discussion. A reference to a few of the cases should be sufficient to establish the general rule on which similar questions must be determined. McCarthy v. Clark, 113 Md. 454, 81 Atl. 12; Annapolis v. Stallings, 125 Md. 343, 93 Atl. 974; Burke v. Baltimore City, 127 Md. 560, 96 Atl. 693. BRISCOE, J. This action was brought for the use of the widow and the infant children of one Albert Biggs, deceased, against the defendant, the mayor and city council of Baltimore, to recover damages for his death, alleged to have been caused by the negligence of the defendant in permitting one of its public streets or highways, called Bush street, at the point where it adjoins what is known as the Bush street dock, to be and remain in an unsafe and dangerous condition for public travel. The amended declaration, and the one upon which the case was tried, avers, in substance: That it was the duty of the mayor and city council, its agents and servants, in the premises, so to protect this street at the point overlooking the dock that the public should be safeguarded from accident while traveling along the street, but the mayor and city council of Baltimore City, its agents and servants, carelessly and negligently failed to perform its duty in the premises, and left the street unsafely protected, in consequence whereof [1] The material facts of the case briefly Albert Biggs on the night of the 27th day of stated, will be found to be these: The deFebruary, 1915, while lawfully operating and ceased at the time of the accident, on the driving an automobile on Bush street, ran 27th of February, 1915, was employed by into the dock, and was then and there thrown Charles B. Jester in the work of house paintinto the water, and that Albert Biggs used ing, and, when not engaged in this work, actdue care; that, by reason of being thrown in- ed as chauffeur in running an automobile beto the water of the dock, he became sick in longing to his employer. On the afternoon body and mind, and from the sickness did on of the accident he was directed to take the the 11th day of March, 1915, die; that the machine to the garage to be overhauled, and, running of the automobile and the throwing after it had been repaired, it was taken from of Biggs into the water of the Bush street the shop by him and the machinist, to be testdock and his sickness and his death were ed on the streets. The witness Langhart tesdue to the unsafe and dangerous condition of tified that they left the garage at 5:30 p. m. Bush street at the point where it overlooks and proceeded north on Spring street to HoffBush street dock, and the unsafe and danger-man street and west on Hoffman to Harford prayers of the defendant, it need not be set out by us. 693. [3] In Mayor and City Council v. O'Donnell, 53 Md. 110, 36 Am. Rep. 395, this court said: "That it was the duty of the defendant to take lights, or other warnings, to warn persons of the proper precaution, by proper guards, signals, impassable condition of the street, so as to prevent injuries to persons passing along said street, and if the jury further find that the deand recurbing said street, did not use ordinary fendant, and those employed by it in repairing care in providing such precautions, and that the plaintiff in consequence of such neglect to provide such precautions, was thrown from his said street, then the plaintiff is entitled to rehack, while driving with ordinary care along cover." avenue, thence over certain other streets to Pratt street, and west on Pratt street to Monroe street; that they stopped at the cor- [2] The duty of a municipality to keep its ner of these two streets; and that Biggs public streets and highways in a safe and left the witness at this point about 8 p. m. proper condition for public travel is well and drove the car south on Monroe street. settled by numerous decisions of this court, The witness Matthews testified: That on and if the city negligently fails so to do, and the night of the accident, between 8 and 9 persons acting without negligence are injuro'clock, a car was stopped at Ridgely street ed, the city is liable in damages. Baltimore and an inquiry made by some one as to the City v. Beck, 96 Md. 190, 53 Atl. 976; Baitidirection to the Annapolis road. He told him more City v. Walker, 98 Md. 643, 57 Atl. 4; to go down Bush street and make a turn to Annapolis v. Stallings, 125 Md. 345, 93 Atl. the right on the Annapolis road; that Ridge-974; Burke v. Baltimore, 127 Md. 562, 96 Atl. ly street was about one square from the Annapolis road. "I told him to go to the next square and turn to the right," and that the machine went down Bush street, and when the witness looked again he saw the back part of the machine go over the wall, into the water of the dock. That there was an electric light located at the northwest corner of Bush street and the Annapolis road, and "I told him where the light was lightening and going out to turn to his right." The evidence further shows that Bush street at the place of the accident extends southeasterly to the northwest side of Russell street, which is commonly called the Annapolis road. This road extends southwesterly across the lower end of Bush street. A large sewer is located beneath the bed of Bush street and across Russell street, and empties into what is called the Bush street dock. At the foot of Bush street and on the sewer, there was a stone wall, the coping of which was about six or seven inches above the surface of the adjoining ground and adjacent to and alongside of the Annapolis road, and there was testimony that this coping, to one walking down Bush street at night, could not be seen "until you got right on top of it." While there were two arc lights at tached to poles, one across the road at Bush street and the Annapolis road, and the other about 150 or 175 feet distant to the west from the first light, there is a conflict in the testimony as to whether the arc lights there located furnished sufficient light and warning to enable travelers or strangers, passing at night along Bush street, to see that this street ended at the Annapolis road and Bush street dock. There was no light upon the stone wall, and no guard around or near the coping on the wall, and this coping was only about six or seven inches above the surface of the ground. These facts, it will be seen, are material, and, as the evidence is conflicting in regard to them, they present questions proper for a jury to determine. There was no question raised as to the public character of these streets, but it was admitted that Bush street and Russell street are public streets. There was other testimony, but, as we think the court below upon the whole testimony committed an error in withdrawing the case In Mayor and City Council of Baltimore v. State, 166 Fed. 641, 92 C. C. A. 335, the court said: "Undoubtedly, a municipality is not required ordinarily to erect barriers, railings, or other highway from straying therefrom; but it does structures to prevent persons traveling upon a not follow that the obligation does not exist where the point is dangerous, either naturally or because of the work being done in and about the excavation in this case was dangerous, or the highway at the particular time. Whether the railing thereto, or the warning given, were sufficient to protect persons from or warn them of such danger, were questions of fact, all to be determined by the jury upon consideration of the whole evidence." Burton v. Kansas City, 181 Mo. App. 427, 168 S. W. 889; Burke v. District of Columbia, 42 App. D. C. 438; Corcoran 660; Wheat v. St. Louis, 179 Mo. 572, 78 S. W. v. City of New York, 188 N. Y. 131, 80 N. E. 790,' 64 L. R. A. 292. There was also error in the ruling of the court upon the fourth prayer. There was no such testimony as to warrant the court to rule that the conduct of the deceased amounted in law to contributory negligence. This question, under the conflicting evidence, was one of fact for the jury. B. & O. R. R. v. State, 72 Md. 40, 18 Atl. 1107, 6 L. R. A. 706, 20 Am. St. Rep. 454; Baker v. Md. Coal Co., 84 Md. 27, 35 Atl. 10; McCarthy v. Clark, 115 Md. 464, 81 Atl. 12; Burditt v. Winchester, 205 Mass. 493, 91 N. E. 880. Coming now to a consideration of the fifteen bills of exception reserved in the course of the trial to the rulings of the court upon the admission of evidence, we find no reversible error in the first, seventh, eighth, ninth, tenth, eleventh, twelfth, fourteenth, and fifteenth exceptions. There was error in the rulings on the second, third, fourth, fifth, |