Volume 104 — Maryland Reports

) In the twenty-fifth exception the question ruled out was: Q. State whether or not your brother Henry, to your knowledge, advised anybody not to lend you money, or not to lend the Regester Company, at or about the time of the advertisement of the sale of this stock ?

<p>Gaming and Wagering Contracts—Agreement to Purchase First Mortgage Bonds to be Stibsequently Issued—Substantial Compliance with Contract to Deliver First Mortgage Bonds— Time Not of the Essence in Equity—Defective Acknowledgment of Deed Cured Before Decree.</p> <p>The members of a syndicate for the purchase of an issue of railway bonds from a trust company signed a contract by which they agreed with each other and the trust company to purchase the number of bonds set opposite their respective names and make payment therefor when called upon at 90 per cent of the face value It was provided that the trust company as syndicate manager should call for payment of the subscriptions at its discretion and should also have power to sell, for pro rata account of the subscribers all or any of the bonds subscribed for at not less than 97}£ per cent, at any time prior to a designated date when the syndicate would be dissolved. Held, that this agreement is not a gambling or wagering contract, since it was not the intention of all the parties that no bonds should be actually delivered, and the trust company had the right to compel a subscriber to accept and pay for the bonds subscribed for by him, if they had not previously been sold at the higher price to third parties for his benefit.</p> <p>Plaintiff agreed, as one of several underwriters of an issue of bonds, to purchase from the defendant a certain number of the bonds of a street railway company under a contract and prospectus which stated that the bonds were to be issued by the company as part of an issue of one million dollars, and would be secured by a first mortgage and only lien on the property of the company. It was provided that the bonds could be delivered to plaintiff and payment of his subscription demanded at any time during the year ending September 1st, 1903. After paying a part of his subscription plaintiff signed an agreement extending the time for the completion of the contract to September 1st, 1904. Plaintiff filed the bill in this case asking that his subscription be annulled and the money paid thereon returned on the ground that the prospectus and agreement contained misrepresentations and that the defendant was not, prior to September 1st, 1904, able to deliver the bonds contracted for. These allegations were based on the fact that there was a prior mortgage of $250,000 on some of the property of the railway company, and also that there was a defect in the acknowledgment of a deed by which a part of its property was conveyed to that company. The evidence showed that of the 250 bonds secured by the prior mortgage all but four had been paid and cancelled prior to September, 1904, that three of the remaining four were paid September 2nd, and the last bond shortly thereafter, before which time the holder could not be reached. As soon as attention was called to it the defective acknowledgment of the above-mentioned deed was cured by a confirmatory deed. Plaintiff knew, w'hen making his subscription, that the bonds were not then issued, bht were to be subsequently issued under a mortgage to be thereafter executed. At the time of the trial of the cause below the defendant was able to tender to plaintiff bonds in all respects conforming to the description in the agreement and prospectus. Held, that in equity time is not of the essence of this contract so as to render a delay of a few days in procuring a technical release of the prior mortgage, and in curing the defective acknowledgment, a vital breach of the contract on the part of the defendant, and that since the defendant had substantially complied with the agreement, the plaintiff is not entitled to be released from his subscription.</p>

<p> Description .of Land in a Devise—When Designation of Quantity is Controlling—Leasehold Property Passing Under a Devise of Real Estate. </p> <p>When a testator, who owns two adjoining parcels of land at the intersection of two streets, devises his real estate at that corner and describes it only as containing a certain number of square feet, then quantity controls, and the devisee takes only that parcel which contains about the number of square feet mentioned.</p> <p>A man purchased a leasehold lot of ground beginning at the intersection of Baltimore and Carey streets, fronting forty-two feet on the latter „ street and running back one hundred and fifty feet on Baltimore street. Two years aftérwards he bought the adjoining property in fee beginning on Carey street forty-two feet from said corner and running back the same distance. A narrow alléy way running from Baltimore street divided the first-mentioned lot into two parts so that the leasehold property running back to it from the corner of Carey street contained 1,534 square feet. By his will the owner devised to a trustee “my real estate corner Baltimore and Carey streets containing about 1,500 square feet.” The will made no other devise of property in that locality, but there was a residuary clause. Held, that the devisee is not entitled to all the land owned by the testator fronting as above mentioned on Carey street, which contains 12,600 square feet, but takes only, that part of the leasehold property beginning at the corner, fronting forty-two feet on Carey street and running back to the alley, which contains 1,534 square feet, and that the remainder of testator’s real estate in that locality passed under the residuary clause.</p> <p>Leasehold property passes under a .devise of real estate when such appears to have been the intention of the testator.</p>

<p>Appeal from the Circuit Court of Baltimore City (Stock-bridge, J.)</p>

<p>Injury to Lineman from Contact with Charged. Wire—Defective Insulation— Contributory Negligence—Evidence.</p> <p>The wires'of an electric light company were strung a few inches from a distributing pole of a telephone company. Plaintiff, an employee of ■the latter company, had occasion in the course of his work, to climb up the telephone pole by means of spikes inserted in it! In descending his left hand came in contact with one of the electric light wires which was charged with more than 2,000 volts of electricity and he received a shock which caused him to fall to the ground. In an action against the electric, light company to recover damages for the injury there was evidence that the defendant’s wires were not properly placed and were</p> <p>' not properly insulated; that the wire which touched the plaintiff was either swung by the wind or caused to vibrate by an approaching trolley car, and that the plaintiff could not have discovered the defective insulation of the wire as he climbed up the pole. Held, that the question whether the plaintiff was guilty of contributory negligence or not was for the jury and it was error to instruct them that the plaintiff was guilty of such negligence as matter of law.</p> <p>When'itis alleged in an action against an electric light company that its wires were not properly placed at a certain point and an injury was thereby occasioned, evidence is not admissible to show that after the accident the location of the wires was changed.</p> <p>In an action against an electric company when it is alleged that the injury complained of was caused By the defective insulation of its wires, evidence as-to the kind of insulation used by other companies is not admissible unless a proper foundation has been laid for such evidence.</p>

<p> Mechanics' Lien—Requisites of Notice of Claim to Owner—Apportionment of Amount Claimed, to Different Buildings—Designation of Boundaries of Land Subject to Lien. </p> <p>A notice to the owner of land by a party who has furnished materials to a contractor erecting a building on the land that such material man “claims and will forthwith file’-’ a mechanics’ lien claim for such mate-</p> <p>' rials is valid and sufficient under Code, Art. 63, sec. 11, which provides that under such circumstances the person furnishing materials shall not be entitled to a lien unless he shall give notice to the owner of the land “of his intention to claim such lien.”- The notice that the lien is claimed is equivalent to notice of an intention to claim it.</p> <p>When materials have been furnished for a building erected on land belonging to a married woman under a contract made by her husband with a builder, it is not necessary, under Code, Art. 63, sec. 19, that the notice of a lien claim by the material man to the married woman should set forth that the builder, who bought from the claimant, was employed by the married woman.</p> <p>A contract with a builder provided for the erection on the same parcel of land of a dwelling-house, a stable and a duck-house. The contractors purchased materials for all the buildings under one entire and continuous contract, and the material man did not know what portion of the materials were designed for the different buildings. Held, that the lien claim for materials is not invalid because it does not designate the amount claimed to be due on each of the buildings.</p> <p>Materials were furnished by the plaintiff to a contractor for the erection of a dwelling-house and two out buildings on a lot of ground containing six acres. The owner of the lot was also seised of a contiguous parcel of land- containing about two-thirds of an acre. Under a bill to enforce a mechanics’ lien in favor of a material man the lower Court directed the sale of the six-acre lot. The owner had not designated any boundaries prior to the commencement of the work, as is authorised by Code, Art. 63, sec. 5; nor did the owner or the lien claimant file a petition to have the boundaries defined in the manner prescribed in sec. 7, or in that prescribed by section 8. Held, that the owner must be held to have waived all objection to the decree founded on the omission to demark the boundaries of the land.</p> <p>When a party owns two adjoining lots of ground on one of which buildings are erected, and the other lot is not necessary for the ordinary purposes of the buildings, it is proper, in decreeing a sale of the lot on which the buildings are erected to enforce a mechanics’ lien, not to include the adjoiniag lot.</p>

) Court’s instructions to the jury in lieu of plaintiff’s prayers.

<p> Negligence—Collision al Railway Crossing—Neglect to Lower Safety ■ Gales—Contributory Negligence—Failure to Look or Listen for Tram—Prayer Assuming Facts—Evidence—Appeal. </p> <p>The tracks of an electric street railway crossed at grade three tracks o the defendant steam railroad company. At this crossing safety'gates were placed and a watchman stationed whose duty it was to lower the gates' upon the approach of a train, but the regulation of the electric company also required its cars to stop and its conductors to go upon the railroad tracks to look for trains before crossing. After dark on the evening of the accident involved- in this case an electric street car came to the railroad from the south and stopped 15 feet south of the track. The safety gates were up and the watchman standing nearby. The conductor of the car went on foot to the middle track and looked in both directions, east and west. He saw no train and heard no bell, and then directed the motorman to come forward. When the car reached the middle track, it was struck by a locomotive coming from the west at a speed of about eight miles an hour and the motorman was killed by the collision. There was a curve in the railroad tracks near the crossing so that the direct view of the conductor when on the middle track was only about 250 feet to the west, and the view of the motorman in that direction from the point where his car stopped was partly cut off by the watch-box and he could see only about 75 feet. The evidence on the part of the plaintiff, in this action to recover damages for the death of the motorman. was that the headlight of the locomotive was not lit; that no bell was rung; that the motorman could not have seen the engine until it was within thirty yards of the crossing, and that he could not then have stopped his car in time to avoid the accident. The defendant’s evidence was that the headlight of the locomotive was lit and the bell rung and that the engineman did not see the street car until it was too near to avoid the collision; also that a passenger in the car saw the engine in time and jumped out of the car before it was struck. Held, that the Court cannot rule as matter of law that the motorman was guilty of contributory negligence on account of his failure to look or listen for the approaching train or to see or hear it if he did look and listen, since the evidence shows that neither the conductor nor the watchman, although looking, saw or heard, and the physical conditions which existed, such as the absence of a headlight, the omission to ring the bell, the sharp curve in the track, the situation of the watch-box and the speed of the engine rendered it possible that the motorman did not see or hear the train when he started his car forward.</p> <p>Held, further, that in passing upon the defendant’s prayer withdrawing the case from the jury on account of the motorman’s contributory negligence, the truth of the plaintiff’s evidence must be assumed, and the act relied on to establish, as matter of law, the existence of contributory negligence - must be distinct, prominent and decisive and one about which ordinary minds would not differ in declaring it to be negligent.</p> <p>When the question is whether a party is guilty of contributory negligence because he did not look for or did not see a dangerous thing, then if that party says that he did look but did not see the object, and the circumstances are such that if he had really looked he must have seen it, his testimony cannot be credited. But that conclusion is not to be adopted when the circumstances of the case are such that it was possible for him to look and still not see the object.</p> <p>There is a broad difference between not seeing an object because one does not look and not seeing it although one does look. In the first instance a failure to look, when the duty to look is imperative, is an act of negligence, whereas in the other instance a failure to see when one does look may be due to other causes than carelessness.</p> <p>If a person crossing a railroad track where there are safety gates knows that the open gates are not to be depended upon as an assurance that the track is clear and nevertheless does depend upon them and fails to observe the precautions that would be requisite if there were no safety gates, he is guilty of negligence.</p> <p>In an action to recover damages for the death of the motorman of an electric car caused by a collision at a railroad crossing when the safety gates were not lowered as they should have been, it is competent for the defendant railroad company to call the attention of the jury to the , rule of the electric company by which its conductors and motormen were instructed not to rely on the position of the safety gates before crossing the track.</p> <p>A prayer is defective if it either expressly or inferentially assumes as proved a fact which should be submitted to the jury for them to find, especially when the burden of proving that fact is upon the party presenting the prayer.</p> <p>In an action to recover damages for the death of a party at a railroad crossing by collision with a train, a prayer instructing the jury that it was the duty of the deceased to look and listen while crossing the track and if the jury find that the accident would not have occurred if the deceased had so looked and listened then no recovery can be had, is defective, because it assumes that the deceased did not look or listen and does not require the jury to find that fact.</p> <p>For the same reason a prayer is defective in such action which instructs the jury that it was the duty of the deceased in crossing the track to exercise reasonable care to avoid collision, and if the jury find that the failure of the deceased to exercise such reasonable care directly contributed to cause the accident, then their verdict must be for the defendant. Such prayer assumes as a fact that the deceased did fail to use reasonable care and does not leave that inquiry to the jury as a distinct question.</p> <p>The Court of Appeals cannot consider what influence the rejection of one prayer aud the granting of another in the presence of the jury may ha,ve had upon their verdict. The jury must be presumed to have acted on the law of the case as laid down in the instructions given, irrespective of the rejected prayers on either side.</p> <p>In an action to recover damages for an injury by collision at a railway crossing when the safety gates were not lowered at the time the person injured went upon the track, evidence is admissible to show that a statute or municipal ordinance required that safety gates should be operated at that crossing.</p>

<p>Appeal from the Superior Court of Baltimore City (Stock-bridge, J.)</p>

<p> Mistake in Description of Land—Reversing Calls—Specific Performance. </p> <p>More than fifty years ago a deed conveying, a tract of land contained an erroneous description of one of the boundary lines but made a reference to a previous correct description and stated that it was the same lot which had been thereby granted. Subsequent conveyances, including the one to the plaintiff in this case, contained the same misdescription but with a reference to the previous conveyance'. The lot had been enclosed in conformity with the correct description and continuously occupied by the plaintiff and his predecessors in title down to the present time. In order to amend the misdescription it would only be necessary to reverse the direction of one of the lines and increase its length from ioj4 perches to iff perches. Held, that the plaintiff’s title to the lot as correctly described is valid and he is entitled to a decree for the specific performance of defendant’s contract to buy the same.</p> <p>In order to correct a mistake in the description of land in a conveyance and cause it to embrace the number of acres it purports to convey, the calls may be reversed and the lines run in the opposite direction.</p>

<p> Title of Act Sufficiently Describing Subject-Matter—Construction of Act of 1904, ch. 2J4, Relating to the Paving of Streets in the Annexed Portion of Baltimore City—Alternative Method of Appointing Commission to do the Paving—Power of Commission to Designate Streets to be Paved and to Select Material—Conflict Between Municipal Ordinances and Act of Assembly—Provision of City Charter Requiring Contracts to be Awarded to Lowest Bidder—Competition Between Different Kinds of Materials for Paving According to Different Specifications—Kind of Material May be Selected After Receipt of Bids—Award of Contract to One Not Lowest Bidder of All Kinds—Award of Contract for Patented Process. </p> <p>Under Constitution, Art. 3, sec. 29, which prescribes that every law enacted by the General Assembly shall be described in its title, it is not necessary that the details of the legislation and the means by which its object is to be effectuated shall be described in the title.</p> <p>The title of the Act of 1904, ch. 274, set forth that it was an Act to authorize the Mayor and City Council of Baltimore to provide a certain sum of money to pay for opening, grading and paving streets in the annex portion of the city, and to authorize the appointment of a commission to be known as the Annex Improvement Commission and to define the duties of that commission. Earlier sections of the Act provided for a certain method of appointing the commission and defined its duties. A subsequent section directed that in lieu of said commission, the Mayor and City Council may by ordinance empower the Commissioners for Opening Streets to perform the duties imposed on said commission. Such an ordinance was passed by the municipality. Held,, that the Act does not violate Constitution, Art. 3, sec. 29, under which the subject of every law must be described in its title, since the subject of the Act is the authority to grade and pave the streets in question, the manner of doing that being a mere matter of detail, and as the method of appointing the commission was not specified in the title, it was competent to provide in the body of the Act for alternative modes of appointment.</p> <p>The Act of 1904, ch. 274, relating exclusively to the paving and grading of streets in the annex portion of Baltimore City, provided for the appointment of a special commission with full power to do the work, and also that the Mayor and City Council might in the alternative empower the regular Commissioners for Opening Streets to perform the duties of said commission Held, that the Act provided for'a system of grading and paving these streets distinct from the system provided by ordinance for grading and paving streets in other parts of the city; that the Legislature had the power to establish such distinct system, and that when by ordinance the municipality directed the work to be done by the Commissioners for Opening Streets these thereby became vested with the powers conferred by the Act on the Annex Improvement Commission.</p> <p>The said Act declared that the commission shall have the right and power to grade and pave any street in the annex portion of the city and shall have all the powers necessary and proper in the exercise of said power. Held, that the commission had the right to designate which streets in the annex should be paved and to select the materials with which the paving should be done, and it was not necessary for the City Council to designate previously the streets to be paved, since full power to pave any street dees not mean power to pave only such streets as the Council may name.</p> <p>An ordinance of the Mayor and City Council authorized the Commissioners for Opening Streets to perform the duties prescribed in the Act of 1904, ch. 274, for the Annex Improvement Commission and directed in one of its sections that in grading and paving streets in the annex the procedure of said commissioners shall be that now or hereafter prescribed by law in relation to the duties of the same nature with which the City Engineer and other officers of the city are clothed. Some of the existing ordinances related to the paving of newly opened streets and to the repaving with improved pavements of streets when an ordinance providing for such repaving does not prescribe the kind to be used. Held, that these provisions have no application to the paving of an existing street in the annex and one in regard to which no ordinance had been passed.</p> <p>Held, further, that the provision directing the commissioners to pave the streets in the annex in the manner prescribed by existing ordinances for similar work in the city is invalid in so far as any of the existing ordinances are in conflict with the Act of 1904, since the Mayor and City Council could not restrict by ordinance any of the powers conferred on the Annex Commission by the Act of 1904.</p> <p>Sections 14 . and 15 of the Baltimore City Charter, Act of 1898, ch. 123, direct that in contracting for any public work or purchase of supplies by any of the city departments or special commissions proposals for the same shall first be advertised for and that the Board of Awards shall after opening the bids award the contract to the lowest responsible bidder. Certain commissioners acting as the Annex Improvement Commission under the Act of 1904, ch. 274, which gave them full power to pave the streets in the annex portion of the city, prepared three sets of specifications for the paving of a certain street in the annex. One set was for asphalt block, the second for vitrified brick, and the third for bitulithic pavement. The last named was a patented process and the specification for it was accompanied by an agreement of the owner of the patent allowing its use by anyone for a designated price. After advertisement two bids were submitted on vitrified brick, one on asphalt and three on bitulithic. The commissioners selected the lowest responsible bidder on bitulithic pavement, although one of the bids on vitrified brick was for a lesser sum per square yard, and the Board of Awards awarded the contract to said bidder on bitulithic. Held, that this method of procedure was not in violation of secs. 14 and 15 of the Charter, since it was not necessary that the selection of the kind of pavement to be laid should be made in advance of the time of asking for bids, and the commissioners had the power either to select the kind of pavement before calling for bids or after the receipt of bids upon distinct sets of specifications descriptive of different kinds of pavements all suited to the same general purpose.</p> <p>Held, further, that sections 14 and 15 of the Charter do not relate to a competition between different kinds of materials with which a street may be paved, but they apply only to a competition in price; they apply to the lowest responsible bidder and not to the lowest priced and least suitable material.</p> <p>When a municipal charter requires that the contract for paving a street be awarded to the lowest responsible bidder and a board is authorized to choose the kind of material to be used, the board is not required to select in advance the particular kind of material to be used and ask only for bids on that. „ Two kinds of competition are lawful, the one competition between different materials which will equally answer the same general purpose, and the other competition between the prices bid respectively upon each of the distinct materials.</p> <p>And the board is authorized to award the contract to the lowest responsible bidder on a particular kind of paving, although the bid on another kind may be lower in price. In such case the board judges which of the materials is more suitable for the locality.</p> <p>When the charter requires that municipal contracts be awarded to the lowest responsible bidder the municipality is not prohibited from purchasing or specifying a patented article or process, at least when there is a stipulation that the patentee would allow the use of his patent and superintend the work in consideration of a specified sum to be paid him by whoever secured the contract.</p>

<p> Municipal Corporations—Delegation of Legislative Power—Ordinance Giving to a Board Power to Select one of Three Kinds of Materials: to be Used in Paving a Street. </p> <p>The exercise of powers devolved by law or charter on the council or governing body of a municipality cannot be delegated by the council to others.</p> <p>When a municipality is authorized by its charter to provide by ordinance for the paving of streets, it may lawfully provide by ordinance for the-paving of streets with any one of three designated materials to be selected, after competition between them, by certain officials, and such ordinance is not a delegation of the granted legislative power.</p> <p>An ordinance of Baltimore City directed that nine designated streets, should be paved with sheet asphalt or asphalt blocks or bitulithic pavement, as might be determined by five named officials after bids had. been submitted. It was also provided that specifications for the: different kinds of paving should be prepared and advertisement made- and that if the bids for doing the work should be excessive in the judgment of the Board of Awards, and the same be rejected, then the City Engineer should do the paving with vitrified brick in the case of these streets, and that in the case of certain other streets directed by the same-ordinance to be paved with wood blocks, if the bids are rejected because excessive the City Engineer should pave those streets with wood blocks by day labor. After the receipt of the bids, the Board of Awards selected asphalt blocks as the material with which one of the nine streets should be paved and awarded the contract to a company whose bid was lower than the other bid on the same material but higher than the bids on sheet asphalt. Section 9 of the City Charter (Act of 1898, ch. 123), empowers the Mayor and City Council to provide by ordinance for the grading, paving, etc., of any street in the city, and to provide by general ordinance for the paving of streets under conditions not here involved. Upon a bill by a taxpayer to restrain the execution of the contract so awarded, held, that assuming that the power to determine what material shall be used in paving a street is a legislative ■power, yet the ordinance giving to the Board of Awards the right to select one of three prescribed kinds of pavement is not invalid as being the delegation of a legislative authority which can only be exercised by an ordinance, since the ordinance in question limits the power of the Board of Awards to the selection of one of three kinds of named materials and is not an unrestricted delegation of the legislative power conferred by the charter on the council.</p> <p>Held, further, that the provision in the ordinance that if all the bids on the alternative materials be rejected then the City Engineer shall pave the streets with, vitrified bricks is not in conflict with sections 14 and 15 of the charter which direct that contracts for work and materials shall be awarded to the lowest bidder after advertisement, since, if any of the designated streets are to be paved with vitrified bricks,.the City Engineer must prepare specifications and advertise for bids, and he is ' not empowered to lay the bricks by day labor.</p>

Henderson, J.) The contract referred to in this case was ss follows: “This agreement made this 22nd day of Sept., 1900, between Mareen Duvall of the first part and William A. Mullinix of the second part, Witnesseth, that in consideration of the sum of three thousand eight hundred and twenty-five dollars the said Mareen Duvall agrees to sell his farm situated three miles East of Damascus, and known as “Duvall’s Range.” Containing one hundred and. fifty seven acres, more or…

<p> Deeds—Rule in Shelley’s case—Limitation Over to Joint Heirs of Husband and Wife After Life Estate to Them.. </p> <p>A deed conveyed land to Anthony and Henrietta, his wife, “for their joint lives and the life of the survivor of them, and to their joint heirs.” Held, that the rule in Shelley’s case applies to this conveyance; that Anthony and Henrietta took an estate in fee simple as tenants by the entireties, and .that upon the death of Henrietta, the entire fee simple estate was vested in Anthony.</p>

<p>Appeal from the> Circuit'Court for Garrett County (Robert R. Henderson, J)</p>

<p>Equity Pleading—Allegation as to Absence af Necessary Parties—Bill . to Vacate Conveyance Because Fraudulent.</p> <p>When defendant’s answer alleges that all the necessary parties to the proceedings have not been made, and the plaintiff does not except to the answer on the ground that it fails to name the persons, who should ' have been made parties, no objection to the answer on this ground can • be made on appeal, and if it then appears that a necessary party is lacking, the plaintiff is not entitled to relief.</p> <p>Under a bill to set aside conveyances of two tracts of land by the defendant upon the ground that they were fraudulent as against the plaintiff, a creditor of the defendant, the bill and exhibits showed that in 1899 defendant was indebted to plaintiff on a promissory note on which plaintiff obtained a judgment in 1904; that in 1899, defendant held the title to one of the tracts, and his wife the title to the other; that in 3900, defendant and his wife conveyed both tracts to a third party, who thereupon conveyed them back to defendant as trustee for his children ■with power of sale; that in 1904, before the rendition of plaintiff’sjudgment, the defendant, as trustee, conveyed one of the tracts to a certain B. The parties defendant to the bill were the defendant and his wife and children, and the third party who had re-conveyed the land to defendant as trustee. Held, that the bill must be dismissed, because as to one tract, the grantee B is not made a party and his rights cannot be affected by the proceeding, and as to the other tract because there is nothing in the evidence to show that it was not the property of defendant’s wife to whom it had been conveyed before plaintiff’s claim • accrued.</p>

<p> Appeal—Agreement as to Facts in Lieu of Transcript of Record—Sales in Equity—Parties—Beneficiary Under a Trust Represented by the Trustee. </p> <p>An agreement by counsel in an equity cause that certain facts, with the docket entries, shall constitute the record for the Court of Appeals in lieu of a transcript of the original papers, as provided by Code, Art. 5, sec. 39, is ineffectual, and the appeal in such case will be dismissed.</p> <p>Land was devised to trustees for the use of one J during her life, the property at her death to descend to her heirs, and full power of sale and reinvestment was given to the trustees. Upon a bill by creditors of the testator, a decree was made appointing a trustee to sell the property to pay debts. The purchaser at the sale objected to the title on the ground that a brother of the life tenant had not been made a party. Held, that the testamentary trustees, who were parties to the cause, represented the interest of all persons beneficially interested under the trust, and that consequently the brother of the c. q. 1. for life was bound by the decree, since Code, Art. 16, sec. 173, provides that in suits where the entire estate to be affected by the decree is vested in trustees with a power of sale, such trustees shall represent the persons beneficially interested under the trust, and'in such cases it is not necessary that these persons be made parties to the suit.</p>

<p> Cloud on Title—Annulment in Equity of Contract of Sale for Failure of Purchaser to Pay Subsequent Instalments of Price. </p> <p>A contract for the sale of a farm for $8,000, payable in instalments extending over six years, provided that the purchaser might at once take possession of the dwelling house and out-buildings and hold them so long as the stipulated payments were made, and that the farm was not to be conveyed, and a purchase-money mortgage executed, until a certain amount of the price had been paid. The buyer paid only two instalments, and then, upon his failure to make further payments, was required to quit the premises in pursuance of a provision contained in the contract. It was also provided that upon the failure of the purchaser to pay any one or more of the instalments when due, all previous payments made by him should be forfeited. When the instalments for two years were in arrears, the vendor filed the bill in this case asking that the contract of sale, which had been recorded, be vacated and annulled as constituting a cloud on the title of the plaintiff. The defendant averred in his answer that he was willing to comply with the terms of the agreement, but there was no evidence in the case of his ability to do so. Held, that although time was not of the essence of the contract, yet that the defendant’s neglect to comply with the provisions of the agreement for two years constituted a bar to any enforcement by him of his claim under it at law or in equity, and that the plaintiff is entitled to a decree annulling the contract of sale, so that his title may not be clouded by an invalid claim.</p>

<p> Landlord and Tenant—Right to Away Going Crops—Estoppel by Silence—Estoppel of Landlord to Deny Right of Tenant to Hat vest Crops Maturing After Expiration of Tenancy—Injunction. </p> <p>The general rule is that when the renting is for a time certain, the tenant is not entitled to out-going crops, which mature after the termination of the lease, unless such right is given by the custom of the country, or by express agreement.</p> <p>A stipulation in the lease of a farm for years that the tenant shall farm the fields in rotation in a proper manner, does not amount to an express agreement that the tenant shall be entitled to re-enter upon the premises for the purpose of harvesting and removing crops which matured after the expiration of the tenancy.</p> <p>A party is equitably estopped to deny the existence of a right claimed by another, when he was silent at the time the claim of such right was made, and his silence induced the other party to believe that no opposition thereto would be made, and he consequently altered his position, and the circumstances are such that it would be a fraud upon the latter party to allow the former to deny what his silence induced the other to act upon.</p> <p>A lease of a farm for a money rent for three years, beginning on March xst, provided that the tenant should farm the fields in rotation in a proper manner. In the summer preceding the expiration of the tenancy, because the tenant said that he would not sow grass seed that year, the landlord determined for the first time to set up the claim that the tenant should not gather crops maturing after the expiration of the tenáncy, and notified him to that effect, while the tenant claimed that he was entitled to the away going crops by the custom of the country, and also because the lease bound him to cultivate the fields in rotation. Subsequently, the tenant concluded to sow grass, and was actually engaged in doing so, when the landlord, coming to the premises, was informed of that fact,- and also that the tenant was sowing seventy acres of wheat and rye which would not mature until after the termination of the lease. The tenant said “I don’t anticipate any trouble in the cutting of my crop.” To this the landlord made no reply. Held, that the landlord’s silence under these circumstances must be construed as an acquiescence in the claim of the tenant, and he is estopped to deny the right of the tenant to gather these crops.</p> <p>When a tenant’s right to gather crops sown by him and maturing after the expiration of his tenancy depends upon the conduct of the landlord amounting to an equitable estoppel to deny such right, equity has jurisdiction to protect the tenant by an injunction restraining the landlord from interfering with the tenant’s entry upon the premises for the purpose of harvesting the crops.</p>

<p> Trespass Quare Clausum Fregit—Recovery also for Trespass vi et armis—Exceeding Authority to Repair Aqueduct on Adjoining Land—Pleading—Replication—Evidence. </p> <p>If a party has a prescriptive right to enter upon adjoining land for the purpose of cleaning and repairing an aqueduct or race by which water is conveyed to his land, and in doing such work exceeds his authority by deepening and widening the race and throwing debris and water upon the adjoining land, he is liable therefor in an action of trespass ' q. c. /., although the acts complained of amount also to a trespass vi et armis.</p> <p>The plaintiff and defendant owned adjoining tracts of land. For more than thirty years prior to the action in this case, a stream of water flowed across plaintiff’s land in an artificial race to the premises of the defendant by whom it was used for agricultural and manufacturing purposes. It was admitted that the defendant had the right to use the water and- the right to go upon the land of the plaintiff to clean and repair the race. In this action of trespass q. c. f, the declaration charged that the defendant entered upon plaintiff’s land and deepened and enlarged the race beyond its former size threw the material excavated upon the plaintiff’s land, and caused large quantities of water to flow over said land. There was evidence in support of these allegations. Held, that the jury was properly instructed that the plaintiff was entitled to recover if they found that the defendant widened the race by cutting down its banks and did more damage to the plaintiff’s land than necessary to secure to the defendant the flow of water which he had been accustomed to enjoy.</p> <p>Held, further, that in such action evidence is admissible to show the uses to which the defendant put the water, and as to the manner in which the race was cleaned.</p> <p>When the party who has the right to enter upon the premises of another to do certain acts, exceeds his authority and forcibly does unlawful acts, the owner of the premises may sue in trespass g. c. f. for the whole wrong, and recover therein also damages for such acts as amounted to trespass vi et armis.</p> <p>In an action of trespass g. c. f. when the defendant pleads a prescriptive right or easement to enter upon the premises for a certain purpose, the plaintiff may reply that the acts complained of were in excess of the right set up by the plea.</p>

<p>Combination to Enhance Prices— Threat to Boycott and Blacklist-Right of Action for Damages—Parties Defendant.</p> <p>The defendants, certain vendors of drugs, formed a combination to maintain a maximum schedule of prices, in restraint of trade, by requiring dealers to agree to sell at the prices fixed by the combination and by threats that those who sold for less than the schedule price should be blacklisted and boycotted and all sale of drugs to them refused, and the members of the combination agreed not to sell to any person who would not agree to maintain such prices. The plairítiff, a retail dealer in drugs, refused to agree to sell at the prices fixed by the combination and consequently the defendants refused to sell drugs to plaintiff, in pursuance of their conspiracy in restraint of .trade, and prevented other 1 vendors of drugs from selling to plaintiff by threatening to blacklist and boycott such vendors, if they did so. The result was that the plaintiff was unable to buy drugs, although ready to pay the prices asked, and was injured in his business. Held, that a declaration setting forth these facts states a good cause of action for the damages suffered.</p> <p>Held, further, that an incorporated association of vendors of drugs, which was the medium by which the unlawfal acts were to be effected, was a proper party defendant jointly with the vendors.</p>

<p> Eqtdty—Parties Bound by Decree—Payment of Debt by Mortgagor After Sale of His Equity Subject to Mortgage—Subrogation of Mortgagor to Rights of Mortgagee Against the Land—Vacating Release of Mortgage. </p> <p>Those who are directly interested in the subject-matter of an equity suit, , know of its pendency and have the right to direct or defend it are bound by the decree passed therein although not made formal parties of record.</p> <p>When the interest in land of a mortgagor is sold, voluntarily or under an execution sale, subject to the mortgage, the purchase-price being lessened to that extent, and subsequently the mortgagor pays the mortgage debt, he is subrogated to the rights df the mortgagee against the land. In such case the payment of the mortgage does not extinguish the lién.</p> <p>When one or more of several tenants in common pays the joint mortgage debt on their land, he is entitled to have the mortgage kept alive so as 'to secure reimbursement .of the amount paid from his co-tenants.</p> <p>The equity of redemption in certain mortgaged land was owned as to one-third interest therein by H. and as to one-sixth interest each by four other persons, two of whom were infants. The one-third interest of H. was sold to third parties under an execution sale, subject to the mortgage. The mortgagee advertised the whole property for sale under foreclosure, whereupon the amount of the mortgage-debt was ten^ dered by H. and the two other adult mortgagors, who had covenanted to pay the debt. The mortgagee refused to assign the mortgage, but accepted the amount tendered and then, without the consent of the • mortgagors, released the mortgage of record. Upon a bill by said mortgagors. Held., that the unauthorized release of the mortgage should be vacated and the parties so paying the mortgage-debt be subrogated to the rights of the mortgagee against the land.</p> <p>That the purchasers of the one-third interest of H. at the execution sale are not benefited by such payment of the mortgage but hold only the value of that interest subject to its share of the mortgage-debt, and that the same principle applies to the shares of the two infants who did not contribute to the payment.</p> <p>That the property should be sold, or so much thereof as is necessary for the reimbursement of the mortgagors who paid the mortgage-debt in the proportions in which they contributed.</p>

On cross appeal. On a trial for murder where there was no evidence that the deceased threatened any violence to the traverser at the time of the homicide, evidence as to the habits of the deceased in regard to drinking liquor is not admissible. Appeal from the Criminal Court of Baltimore (Harlan, C. J.)

<p>Appeal from the Orphans’ Court of Baltimore City.</p>

<p> Construction of a Devise in Trust for Life with Limitation Over—Contradictory Clauses in Will. </p> <p>A testator gave three-fifths of his estate to a trustee with directions to pay the income to his daughter during her life, and from and immediately after her death, he gave that share to the children of his daughter, the descendants of any deceased children to take per stirpes, absolutely and free from the trust, and provided that if his daughter should die without leaving issue, the income of that share should be paid to his son for life, with remainder to his children. By the next clause, the testator gave two-fifths of his estate in trust for his son for life, with the same limitations to his son’s children. Subsequently, the will provided as follows: “If my son and daughter both leave children or descendants living, they are to take the property hereby devised to them in equal proportions share and share alike.” Both the- son and daughter died, leaving children surviving them. Held, that the last-mentioned clause of the will does not require the estate to be divided equally between all the grandchildren, but the children of the daughter are entitled to three-fifths, and the children of the son to the other two-fifths of the estate.</p>

<p>Appeal from the Superior Court of Baltimore City (Stock-bridge, J.)</p>

<p>Witness—Competency— Transaction With Decedent—Testimony Competent hi Part—General Exception—Cancellation of Instruments— Insufficiency of Evidence to Prove Contract to Make a Will.</p> <p>In a suit to enforce an alleged agreement made by a deceased intestate ■with the plaintiff, the latter is not a competent witness to testify as to any transaction had with or statement made by such decedent. But the plaintiff is competent to testify as to other matters.</p> <p>Under Code, Art. 35, sec. 3, a nominal party is not excepted from the ■ disability thereby imposed upon the parties to the cause to testify as to transactions had with, or statements made by a decedent in proceedings by or against the personal representatives or heirs of such decedent in which judgment may be rendered for or against them.</p> <p>When a witness is incompetent to testify as to some matters but is competent as to others, and his testimony as given relates to both matters, then a general exception to all of his testimony will not be sustained. The exception in such case should designate the questions and answers objected to on the ground of the incompetency of the witness.</p> <p>A person of average intelligence and able to read who asks to be relieved from the effect of a paper signed by him on the ground that he did not read it must establish a very clear case of mistake or impositioq before he is entitled to the aid of a Court of equity.</p> <p>A woman died intestate leaving a husband and a daughter by a former marriage. The husband as her administrator received possession of two certificates of city stock each for $3,000. Under the then existing law he was entitled to a life estate in the whole sum of $6,000, which upon his death would go to the daughter. The Orphans’ Court authorized the husband to transfer one of the $3,000 certificates to himself individually and the other to the daughter, and the latter executed a’ release stating that she had purchased the former’s life estate for the sum of $3,000. After the death of the husband intestate the daughter filed the bill in this case alleging that she had executed the release upon the understanding that what her stepfather received was to be enjoyed by him during his life and at his death the same was to be returned to her; that she had not read the release but supposed it was as thus represented. The bill prayed that the release be cancelled and that the agreement to return the $3,000 be specifically enforced. Held, that the plaintiff is not entitled to the relief asked for since the evidence fails to prove that the deceased administrator agreed, as a consideration for the release or for the transfer to himself of one of the certificates absolutely, that he would leave it by will or otherwise, after a life estate, to the plaintiff, and that the most that can be deduced from the testimony is that he left the plaintiff under the impression that he would so leave it, without in any way binding himself or his estate to make such a disposition of the certificate.</p>

<p>Carriers—Delay in Transportation—Reasonable Diligence—Unforeseen Difficulties—Failure to Furnish Cars After Notice— Cattle Designed for a Certain Market Day—Knowledge of Carrier—Evidence— Measure of Damages—Claim for Damages in Declaration—Instructions—Evidence of Contract Limiting Carrier’s Liability.</p> <p>The common law duty of a carrier of live stock is to transport the same within a reasonable time, having due respect to the circumstances of the case, and, in the absence of an express contract, the carrier is liable for a delay in the transportation, which could have been avoided by the exercise of reasonable precautions.</p> <p>When reasonable notice is given of the time and place when freight will be tendered to a railroad for transportation, the carrier is liable for a negligent failure to provide the means of transportation.</p> <p>If a shipper gives due notice that two cars will be required for the transportation of cattle on a day named, and two cars are sent to the shipping point but one of them is afterwards diverted by the carrier to another purpose and its place not supplied until several hours later, in consequence of which delay the cattle fail to arrive in time for the market day for which they were designed, and for which the carrier knew they were designed, it is prima facie evidence of negligence on the part of the carrier.</p> <p>When there has been a delay in the transportation of freight by the carrier, beyond the usual time, it is not necessary for the shipper to prove that the delay resulted from some independent, specific act of negligence on the part of the carrier.</p> <p>When the delay in the delivery of freight is caused by unusual and unforeseen circumstances and not by negligence, the carrier is excused.</p> <p>If a carrier knows, or may reasonably infer from the circumstances of the case, that cattle delivered to it for transportation is designed for a certain market on a certain day, the carrier is liable for neglect to exercise due care to provide the means of transportation after proper notice, and to carry the cattle with reasonable diligence, so that they may reach the market in time. In such case, it is not necessary to prove a direct communication to the carrier of the fact that the cattle .were intended for the market, but that knowledge may be inferred from the circumstances of the case.</p> <p>The plaintiff' delivered to the defendant railroad company, a quantity of cattle to be transported to a stock yard market, after having given notice of the cars required. The market for cattle was held on only one day of the week, and was over at io o’clock on the morning of that day. The cattle were delivered to the carrier on the morning of the day before at points from which the time usually required for transportation was about five hours. . One of the cars sent on plaintiff’s notice was diverted to other uses. The cattle were not delivered until after the close of the market, and the plaintiff sued to recover damages caused by the delay. Held, That evidence is admissible to show that the defendant knew, or might have reasonably inferred, that the cattle were intended for sale at the market to be held on that certain day.</p> <p>Held, further, that evidence is admissible to show the time usually taken by the defendant to transport cattle from the shipping points to the market, so as to compare that time with the time taken in the present case, and thus determine whether the transportation had been effected within a reasonable time:</p> <p>When a carrier is guilty of a negligent delay in the transportation of cattle intended for sale at a certain market, the measure of damages is the difference between the market value of the cattle at the time when they should have been delivered if due dispatch had been exercised, and their value at the time when they were actually delivered.</p> <p>A prayer offered by the defendant asserting that there was no evidence to show that said cattle was not sold in open market was properly rejected, because there was no question in the case as to open mai'ket.</p> <p>Since the plaintiff’s evidence shows that the cattle were not actually delivered so as to be within his control in time for the market, and that he suffered a loss, by reason thereof, prayers offered by the defendant instructing the jury that there is no evidence to show that the cattle did not arrive in time for the market, and that the plaintiff is only entitled to nominal damages were properly refused.</p> <p>A declaration containing five counts, charging the defendant railroad with negligence in failing to transport cattle within reasonable time in different cars, as set out in the respective counts, concluded with the averment, whereby’ on each of said several occasions, the cattle failed to reach the destination in time for the market, and then followed a claim for damages. The fifth count was afterwards struck out. Held, That the above mentioned concluding averment was not a part of the fifth count only, but the damages therein claimed related to each of the counts, and it is unnecessary to insert the claim for damages at the end of each count of the declaration.</p> <p>When a part of the answer of a witness is competent evidence and a part • is irrelevant, a motion to strike out the whole answer is properly overruled.</p> <p>When the measure of damages is correctly stated in a prayer granted upon the request of the plaintiff, it is not error to refuse to repeat the same rule at the request of the defendant in another prayer.</p> <p>If it is the custom of a railway company to charge a certain rate for the transportation of cattle when the shipper agrees that the company shall not be liable for loss sustained by any unusual delay in the transportation beyond the amount actually expended by the shipper for food and water for said cattle when so detained, and to charge a higher rate when no such agreement is made, then if the shipper agrees to pay and does pay, the lower rate for his cattle and the condition upon which such lower rate was charged was known to the shipper, he is not entitled to recover damages for the depreciation in the value of his cattle . because delivered too late for a certain market day. But in such case, the burden of proof is upon the defendant to show that the plaintiff knew at the time of shipping his cattle that the rate charged was based upon such condition.</p>

<p> Proof of Relation of Master and Servant—Injury to Workman in Elevator Shaft—Evidence. </p> <p>Deceased was employed as a painter by a firm which was erecting an apartment house. On July ist, the house was turned over to a corporation. The manager of the firm who had employed the painter, was also the manager of the corporation. Deceased continued to work after the transfer of the house, and there was no notice to him that he was thereafter in the employ of the corporation. While at work, in September, painting in the basement of the elevator shaft, he was struck by the elevator and died as the result of the injuries. In an action against the firm to recover damages for the death so occasioned. Held, that the relation of master and servant between the deceased and the firm having been once established and his work continuing to be apparently the same as before July ist, that relation could not be changed by any undisclosed intention on the part of the manager to consider the deceased as an employee of the corporation, and that the evidence in the case is legally sufficient to show that the deceased when injured, was in the employ of the firm.</p> <p>Held, further, that evidence is admissible to show that after July ist, the wages of the deceased were paid by the firm, or the money expended by the firm for his work, was repaid by the corporation.</p> <p>Held, further, that evidence that the defendant carried casualty insurance on the work, is not admissible.</p> <p>An employee was struck by an elevator while in the basement engaged in painting the cage. In an action against the firm who employed him, and whose manager denied that he had directed the deceased to do the work in- question while the elevator was running, a witness may be asked what he heard defendant’s manager say to a third person in regard to elevator, and what precautions were taken by the manager to stop the elevator when deceased was at work in the basement of the ■ shaft.</p> <p>In an action to recover damages for a death alleged to have been caused by defendant’s negligence, the records of a hospital where the deceased was treated for the injuries resulting in his death, are not admissible in evidence when unaccompanied by the testimony of the person who made them, or proof that they were in his handwriting, or that such person was on duty at the hospital on the days to which the entries related.</p>

<p>Appeal from Circuit Court No. 2, of Baltimore City (Wickes, J.) ■</p>

<p>Appeal from the Superior Court of Baltimore City.</p>

<p> Wagering Contract—Burden of Proof—Purchase of Shares of Stock on Margin—Evidence. </p> <p>In an action by a broker to recover the amount due by a customer for shares of stock bought by the latter on margin, the burden of proof is upon the defendant to show that the transaction between the parties was a gaming or wagering contract and not an actual sale.</p> <p>The evidence in this case examined and held to show that the transaction between the plaintiff's, stock brokers, and the defendant, a customer, was a bona fide sale of shares of stock and not a mere wager on the difference between the prices of the stock on different days.</p> <p>When a broker buys shares of stock for a customer who deposits with him a margin in part payment, there is no obligation upon the broker to sell such stock before being requested so to do or before the agreement between the parties requires a sale. Consequently in an action by the broker to recover the balance of the purchase price questions as to the market value of the shares at other times are irrelevant.</p>

<p>Municipal Corporation Liable to Suit in Another Jurisdiction in Local Actions— Trespass q. c. f</p> <p>A municipal corporation may be sued in an action of trespass to land in Courts other than those within its territorial limits, when the cause of action arose m another jurisdiction.</p> <p>Trespass to real property is a local action and must be brought in the county or city where the land is situated.</p>

<p>Appeal from the Circuit Court No. 2, of Baltimore City (Wickes, J.)</p>

<p> Consolidation of Corporations—Bonus Tax on Shares of Stock Issued and Caucelted. </p> <p>The Consolidated Gas, Electric, etc., Co., was formed by the union of a gas company and of a power company. The latter company at that time owned sixty-one per cent of the stock of the Gas Co. The certificate of consolidation and incorporation of the new company stated that its total authorized capital stock should be $21,902,258. Also that when the stock of the Gas Co. owned by the Power Co. shall have been exchanged as therein directed for the appropriate amounts of preferred and common stock of the Consolidated Company such stock of the Consolidated Co. shall be cancelled by the Power Co. After such cancellation the total stock of the Consolidated Co. was to be $13,360,088. Code, Art. 81, sec. 98, provides that every new corporation shall pay to the State a bonus of one-eighth of one per centum, upon the amount of capital stock which said company is authorized to have. Held, that the Consolidated Co. is a new corporation authorized under its certificate of incorporation to have a capital stock of $21,902,258, and although provision is made for the cancellation of a part of that amount yet it could not be cancelled until issued and could not be issued unless the bonus tax be paid and that the Consolidated Co. is liable for the bonus tax on that amount and not merely on $13,360, 088, being the balance of the stock remaining after deducting the cancelled stock.</p>

<p> Costs—Liability of Persons to Whose Use Judgment is Entered—Changing Entry in Trial Court After Appeal is Taken. </p> <p>Under Code, Art. 24, sec. 8, a person for whose use an action is marked, is liable for costs, where the entry of the use is merely for the purpose of giving the cestui que use a collateral security for a subsisting debt, as well as where an unqualified interest in the subject of the suit is assigned.</p> <p>After a judgment had been rendered in the trial Court, one-half of it was entered to the use of R. The defendant in the judgment appealed, and at the time the judgment was reversed with costs, the docket ot the Court of Appeals showed that the judgment was to the use of R. et al. Before the judgment of reversal, the entry to the use of R. was stricken out in the trial Court, and the entry made to the use of another person, but no such entry was made in this Court. The defendant in the judgment issued an execution against R. to satisfy the costs which had been adjudged against the appellees in this court. On a bill by R. to restrain the execution, held, that the entry made only on the record of the Court below, after the case had been argued in this Court, can not alter the relation of R. to the case as it stood on the records of this Court, or defeat the judgment of this Court as to costs upon the record as it appeared here, and that therefore the injunction asked for will be refused.</p>

<p>Appeal from the Circuit Court of Baltimore City (Stock-bridge, J.)</p>

) Defendant's ist Prayer.—If the jury shall find from the evidence that the defendant executed, acknowledged and recorded a deed of which a certified copy has been offered in evidence, and, that in executing said deed, and recording the same,, the defendant intended to convey the property mentioned therein, to the person who testified that his name is Louis F. Graffiin, and if they shall further find that the said Louis F. Grafflin agreed with the husband of the defendant,…

<p>Appeal from the Orphans’ Court of Baltimore City.</p>

<p>Ordinance Authorizing Consti uction of Switch Across Side-walk Connecting an Express Co. with a Street Railway Co.— Validity—Public Use—Price Paidfor Franchise in Streets—Legislative Power Over Streets—Right to Transact Express Business on Street Railway— Demurrer to Bill.</p> <p>One section of a municipal ordinance authorized a street railway company to lay down a curved track to connect its tracks with the warehouse of an express company, “in accordance with the plat filed in the office of the City Engineer.” The second section of the ordinance directed that the switch should be so constructed so as not to interfere with, or encroach upon, the sidewalks and gutters of the streets. Held, that the ordinance must be construed in connection with the plat and it then appears that in spite of the contradictory provision of the second section the ordinance authorizes the laying of the switch across the side-walk to run into the company’s warehouse, but that the rails must be so laid as not to project above the level of the foot-pavement.</p> <p>The Charter of Baltimore City confers upon the Board of Estimates the power to determine the prices to be charged for franchises in the streets granted by ordinances; and the Courts cannot hold an ordinance granting such a franchise to be invalid, merely because a small sum was charged for it. when it is not alleged that the amount of the charge was dishonestly arrived at, or was not fixed by the Board of Estimates in the manner prescribed by the City Charter.</p> <p>A company which carries for the public all kinds of express matter between a city and suburban points, is engaged in a public service, and is not a strictly private business.</p> <p>A municipal corporation may authorize a street railway company to construct a switch across the sidewalk of a street, for the purpose of connecting its tracks with the warehouse of an express company, whose cars, carrying express matter for the public generally, are run over the lines of the railway company. Such use of the street is for the benefit of the public at large.</p> <p>When a street railway company is authorized to transact an express business on certain streets, it may give to one express company the exclusive right to' do that business on its lines, if such company affords to the public reasonable express facilities.</p> <p>The Charter of Baltimore City forbids the Mayor and City Council to grant any franchises in the streets of the city without requiring adequate compensation to be paid therefor. But that charter provision does not affect the right of the Legislature to make such grants in the streets of the city without compensation.</p> <p>When a curved switch is constructed under municipal authority across the sidewalk of a city street connecting the warehouse of an express company with street railway tracks, both the railway company and the express company must so use the switch as not to interfere unnecessarily with, the rights of the public and of the adjacent property owners; and cars cannot be permitted to stand upon the switch so as to prevent other vehicles from passing or unloading.</p> <p>Upon demurrer to a bill in equity the facts alleged therein are taken to be admitted, but not the conclusions of law drawn therefrom by the pleader.</p>

<p> Legacy Given for a Consideration—Priority of Payment—Burden of Proof—Demonstrative Legacies—Abatement of Legacy—Renunciation of Will by Widow—furisdiction of Equity—Costs. </p> <p>When a general legacy is given in satisfaction of a subsisting debt due by the testator to the legatee,.or when given in consideration of the relinquishment of a right by the legatee, as of her dower or thirds by a widow, such general legacy, in the event of an insufficiency of assets, is entitled to preference of payment over other general legacies.</p> <p>The legatee who claims priority of payment because his legacy was given upon a consideration must show that the testator was under a subsisting legal obligation at the time of his death.</p> <p>When a legacy is given in compensation for services rendered by the legatee gratuitously, there being no legal obligation upon- the testator to pay for the same, the legacy is not entitled to priority but abates proportionately with other general legacies, in case of an insufficiency of assets.</p> <p>A legacy or a sum of money made payable from the proceeds of a claim owned by the testator and collected after his death, is a demonstrative legacy.</p> <p>Demonstrative legacies given for a consideration are entitled to preference over other demonstrative legacies payable out of the same fund and given gratuitously, in case the fund is inadequate to the payment of all legacies in full.</p> <p>A testator bequeathed a sum of money to a woman and stated that it was in consideration of her personal services and attention to him during sickness, and also for money loaned by her to him. He also bequeathed a sum to a man and stated that it was in consideration oí money loaned. The evidence in the case showed that some of the services rendered were gratuitous, and that the charges for money loaned were grossly excessive, and in the case of each legacy for much less than the amount of the legacy. Held, that these legacies are not entitled to priority of payment over other legacies, but they all abated proportionately if there be an insufficiency of assets to pay them all in full.</p> <p>When a testator sets apart a particular fund for the payment of a number of legacies, the presumption is that he did not intend to give one legacy a preference over the others in payment, in the absence of a definite statement showing his intention to give a preference.</p> <p>When a will makes no provision for the testator’s widow, it is not necessary for her to renounce the will, but she is entitled to demand the share of the estate to which a widow is entitled who has not waived her rights.</p> <p>Equity has jurisdiction of a bill to enforce payment of a legacy.</p> <p>Costs of a suit to establish a priority in payment of a legacy decreed to be paid out of the testator’s estate after deducting the widow’s share.</p>

<p> Collision at Electric Railway Crossing in the Country—Contributory Negligence. </p> <p>Plaintiff, riding sideways on horseback along a country road, on one side of which ran the track of an electric railway, turned to cross the track with his back towards an approaching car, which struck the hindquarters of the horse and injured it and the rider. The plaintiff testified that at the moment he started over the crossing, he slightly halted his horse and looked up and down the track and saw no car. But the evidence established the fact that there was then a clear view of the track and of the car for a distance of 500 feet. Held, that the plaintiff failed to see the approaching car, because he did not really look, and consequently was guilty of contributory negligence as matter of law, which precludes him from recovering damages for the injury.</p> <p>More caution is demanded of a person in crossing a track of an electric railway in the country than would be necessary in a city.</p>

<p>Appeal from the Circuit Court of Baltimore. City (Stock-bridge, J.)</p>

<p> Insane Persons—Necessity of Notice to Lunatic of Execution of Writ de Lunático Inquirendo—Exception to Rule—Petition to Vacate Order ■ Confirming Inquisition. </p> <p>The general rule is that in the execution of a writ de lunático inquirendo the person alleged to be a lunatic must have reasonable notice of the time and place of taking the inquisition and an opportunity to attend and make his defense; although there be no statute requirement to that effect.</p> <p>When the person alleged to be insane is out of the State, or it would be injurious to have him brought before the jury because he is in a condition of dangerous madness, or for other sufficient reason, the Court may make an order dispensing with notice to him and his personal attendance.</p> <p>An order of Court confirming the inquisition of a jury that a certain person was insane and' appointing a committee, when no notice of the ' proceeding was given to the lunatic, may be vacated upon petition to set the same arise although the order has become enrolled.</p>

<p> Riparian Rights of Owners of Wharves in the Harbor of Baltimore Oily—Construction of Acts of Assembly—Condemnation of Part of a Wharf to Widen a Street—Concurrent Rights in Water of Harbor of the Owners of Wharves at Intersecting Points—Permit to Build Pier out from Wharf-—Award of Damages on Condemnation. </p> <p>Pratt Street, extending along the north side of navigable water in the harbor of Baltimore City, called at that point the basin, is intersected at right angles by Light street, which extends southerly along the west side of said water. The riparian owners along these streets had filled out into the water and built wharves under the provisions of the Acts of 1745, ch. 9; 1796, ch. 45; 1801, ch. 92, and 1805, ch. 94, or some of them, by which they acquired the perpetual right to use the wharves and were exclusively entitled to the right of wharfage and moorage. In 1817, Pratt street was condemned by the city, which thereby became owner of the wharf extending easterly on said street from Light street, and entitled to riparian rights as such owner. A steamboat company became the owner of six contiguous lots on Light street running south from Pratt street and of the wharves, fourteen feet wide, built out into the water from the same, and that company was also the lessee of the city’s wharf on Pratt street to the north thereof. The steamboat company, under permits from the city, built out piers projecting from its wharves into the basin. In 1904, the city, acting under an ordinance of that year, and under the Act of 1904, ch. 87, for the purpose of widening Pratt street, condemned a strip of land south of that street fifty feet wide and extending several hundred feet easterly from Light street. The property condemned included fifty feet of the wharf owned by the steamboat company, and a part of the pier. Upon appeal from the award of damages and benefits, held.</p> <p>That the steamboat company, as the successor in title of the owners of lots on Light street who had filled them out in accordance with said Acts of Assembly, had an irrevocable right to maintain said wharves and to the rights of wharfage and moorage in connection therewith, and cannot be deprived of these rights except upon compensation after due condemnation.</p> <p>That the steamboat company is not estopped from asserting its rights to the Light street wharves from the fact that it is the'lessee from the city of the Pratt'street wharf immediately to the north thereof.</p> <p>That the right of the steamboat company to the piers built out into the basin in front of its wharves, depends upon the terms of.the permits from the city under which they were constructed, and these permits do not show an intention to give the steamboat company any right to use the waters of the basin superior to the right of the public to use the Pratt street wharf.</p> <p>That the Acts of 1796, 1801 and 1805, which authorize the extension of the Light street lots by filling in and building out the wharves, did not grant to the owners of those lots ány rights in the basin superior to, or exclusive of, those possessed by the owners of land bounding on the basin to the north, who had filled out their land and constructed wharves under the Act of 1745.</p> <p>That by these Acts, the Legislature granted to the owners of wharves on Light street and Pratt street, concurrent rights to the navigable waters of the basin lying in front of their wharves.</p> <p>That in estimating the damages to the steamboat company caused by the taking of part of its wharf and pier, all of the advantages and disadvantages caused thereby, must be taken into consideration, as is re- ' quired by the Act of 1904, and it appears from the inquisition that such allowance of damages was made, and. it is not shown that damages were allowed for a portion only of the improvements on the condemned part of the property.</p> <p>That the record does not present any question as to the priority of one of several deeds from the State after the passage of the Act of 1745.</p> <p>That the city, as the owner of the wharf on the south side of Pratt street as widened, will have the same wharfage and riparian rights in the water in front, which it had in front of its wharf before the widening.</p> <p>That the steamboat company is entitled to damages for the condemned portion of its Light street wharf and improvement's, and the loss of its right to moor and dock vessels on the fifty feet part of'its wharf taken for the widening of the street, and the deprivation of the right of access by water over those fifty feet, and the extinguishment of its lease of the Pratt street wharf; aud that the city is entitled to only nominal damages, because it will have the same wharfage and riparian rights on the south side of the widened street that it now has on the south side of the present street.</p>

<p>I.andlord and Tenant—Repairs—Rebuilding of Walls Condemned by Inspector of Buildings A fter Execution of Lease— Construction of Agreement' and Lease—Payment for Wall Rebuilt by Tenant.</p> <p>When after the execution of a lease providing that the lessee shall make certain designated repairs, not connected with the walls of the structure, the Inspector of Buildings, acting under the authority, of municipal ordinances, condemns the walls of the demised building as dangerous and orders their removal, the lessee is not required to rebuild the walls nor is he entitled to do so and charge the cost to the lessor. But if the subsequent dealings between the parties indicate that the lessor requested the lessee to rebuild the'walls so that the terms of the lease may be complied with to the advantage of both parties, then he is liable for the cost thereof, although at the time he contended that under the lease this expense should be borne by the lessee.</p> <p>A lease of a warehouse for a term of years provided that the lessees should make at their cost certain repairs and alterations according to an architect’s specifications; also that the lessees would keep the premises in good order and surrender the same at the end of the term in as good condition as when received, natural wear and tear excepted, and that whatever alterations and repairs the lessees shall be permitted to put upon the premises shall be done at their own expense. The specifications made no reference to the side walls of the building. Subsequently and before the beginning of the term, the Inspector of Buildings of the City condemned these walls as unsafe and directed that they be made secure or removed. The lessees then filed a bill in equity to enforce the lease and asking that the lessors be required to pay the cost of rebuilding the defective walls. In this proceeding an agreement between the parties was filed setting forth that the lessees should enter the premises and might make such other repairs on the demised premises as they might think reasonable, over and above those mentioned in the lease, the premises to be restored at the end of the term in the same condition as contemplated by the specifications; also that the lessees should pay the rent monthly until an account should be passed by the Court determining the respective rights of the parties as to any claims to be allowed. The lessees then took down the condemned walls and rebuilt the same, and also made the improvements called for by the lease. These latter could not have been made without the rebuilding of the walls. The condemnation by the Inspector imposed on the lessors the obligation to remove walls but not to rebuild the same. Held, that since the law imposes no obligation upon either landlord or tenant to make repairs in the absence of a covenant, there was no implied obligation upon either of the parties to rebuild the walls.</p> <p>Held, further, that the provisions in the lease as to keeping the premises in good order and making the designated improvements did not require the lessees to reconstruct the defective walls.</p> <p>Held, further, that the subsequent proceedings in the equity cause and the agreements therein indicated that the lessors required the lessees to do the rebuilding and amounted to an arrangement by which the lessees should do the work and leave it to be determined by the Court who should pay therefor, each party at the time claiming that the expense should be borne by the other; that the rebuilding was necessary to enable the lessors to obtain the rent reserved and necessary for the lessees in order to make the improvements and obtain the benefits of occupancy; that under these circumstances the lessees are in the position of having rebuilt the walls not as volunteers but at the request of the lessors, and that the lessors should pay the cost thereof.</p> <p>Held, further, that the lessors are not liable for any expense connected with the removal and rebuilding of the defective walls beyond what was necessary for a compliance with the municipal building regulations, and consequently should not be charged with the cost of fire shutters which were not demanded by such regulations.</p> <p>Held, further, that under the lessee’s bill and the consent of the parties that their rights should be adjudicated in the cause, the Court has jurisdiction to decree the relief asked for by the lessees.</p>

<p>Appeal from the Circuit Court for Baltimore County (Duncan, J.)</p>

<p>■ Appeal from the Circuit Court of Baltimore City (Stock-bridge, J.)</p>

<p>Appeal from the Circuit Court No. 2, of Baltimore City (Wickes, J.)</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p>

<p>Carriers— When Liable as Warehousemen After Arrival of Goods at Destination —Goods held by Carrier After Arrival at the Request of Consignee—Appeal—Inconsistent Lnstructions.</p> <p>The liability of a carrier as insurer continues after the arrival of the goods at their destination and until the consignee, after being notified of the arrival, has had a reasonable time in which to remove them.</p> <p>When the consignee fails to take away the goods within a reasonable time after being notified of their arrival, the liability of the carrier for their custody is that of a warehouseman.</p> <p>When the facts are undisputed, the question in such case of what is a reasonable time is one of law.</p> <p>Goods arrived on a Friday morning at the carrier’s wharf, and the consignee was notified thereof. He failed to take them away or accept a delivery of them, and the goods were destroyed by an accidental fire on the following Sunday. Held, that the consignee had had a reasonable time on Friday and Saturday within which to receive the goods, and the carrieV is not liable for their loss at a time when they were held by it as warehouseman.</p> <p>When a carrier is ready to deliver the goods after their arrival but holds them at the request and for the convenience of the consignee, the carrier is thereafter liable for their safe keeping only as a warehouseman.</p> <p>Goods were shipped to plaintiff, on receipts and not by the uniform bill of lading, on defendant’s steamer, which arrived in Baltimore, the destination, early on the morning of Friday, February 5th, 1904. The defendant, (the carrier,) was accustomed to deliver such goods to the consignee directly, and on the morning of that day notified plaintiff of the arrival of the goods and offered to deliver the same. Plaintiff requested that the goods be held by the defendant until the following Tuesday. The defendant agreed to do this, provided the plaintiff would pay for the expense of delivery on that day, and defendant also notified plaintiff that the goods would be at the latter’s risk. The goods were taken from the ship and stored on defendant’s wharf where they were destroyed, without any negligence on defendant’s part, in the great fire of Sunday and Monday, February 7th and 8th. Held, that the defendant was custodian of the goods as warehouseman and is not liable for the loss so occasioned.</p> <p>An appellant has no right to complain that a correct instruction to the jury is in conflict with instructions granted at his request which are erroneous.</p>

<p> Dedication of Street by User—Burden of Proof—Evidence. </p> <p>The open, continuous and uninterrupted use by the public for more than twenty years of a way across the land of an individual, under claim of right, constitutes a dedication of the way to the public by prescription.</p> <p>When the owner of land alleges that the use by the public of a road across his land was not adverse and did not constitute a dedication of the way by user for twenty years,_ the burden is upon him to show that the use of the road was by license, or permissive, or was under a contract inconsistent with the claim of a right.</p> <p>The Canton Company owns a tract of land extending from Alice Anna street southwardly to the water of the harbor. Through this tract a street or road, laid out by the company, runs to the water which is apparently a continuation of a public street which runs from the north to Alice Anna street. For considerably more than twenty years, this street had been used by the public without interruption or hindrance. The city authorities had laid in it a water main and drains, and had repaired and cleaned it, and it had been patrolled by the police. Certain obstructions placed in the bed of the street by tenants of the Canton Company were of a temporary nature only, and did not materially interfere with the public’s use, and although that company had graded and paved the street, it had done the same work on public streets in the vicinity. Until shortly before the institution of this suit, the Canton Company had never obstructed the use of the street by the public. Held, that this street had been dedicated by the adverse and continuous use of it by the public for more than twenty years.</p>

<p>Appeal from the Circuit Court of Baltimore City (Dob-LER, J.)</p>

<p> Taxation—Private Alley—Assessment to Owner of Fee—Extinguishment of Easement—Advertisement of Property to be Sold for Taxes —Exceptions. </p> <p>When the owner of a tract of land conveys a part thereof describing one line as binding on an alley of a designated width to be left open for use in common, and said alley is a part of the land of the grantor and not a public alley, then such alley may be assessed for purposes of taxation to the grantor and it is^not exempted, because of the creation of a private easement in it.</p> <p>Such private alley may be sold for non-payment of taxes assessed ot\ it although the effect thereof may be to destroy the easement.</p> <p>An advertisement of land to be sold for non-payment of taxes is sufficient if it describes the land so that it may be identified. The quality of the estate held therein by the possessor need not be described.</p> <p>A person entitled to an easement of way in land which is sold for nonpayment of taxes, is not authorized to except to the sale on the ground that notice of the assessement was not given to the owner of the land. .</p>

<p> Special Fund Payable by Building Committee to a Contractor Impressed with a Trust—Liability of Building Committee for Breach of'Trust —Liability of Parties Receiving Trust Fund—Improper Advance to Contractor—Suit in Equity by Trustee for Bondholders and Receiver of Corporation—foinder of Parties. </p> <p>When a fund is deposited in a bank in the name of a contractor to be used by him in the erection of a building for a corporation, but not to be drawn out except upon certificates of the building committee of the corporation as installments of the work shall have been done by the contractor, such fund is impressed with a trust. And if the building committee, knowing that the contractor has not done the work, or negligently without inquiry, give him certificates upon which he draws out such fund and applies the same to his own purposes, that action constitutes a breach of trust, and the members of the committee, being quasi trustees, are liable for the amount of the fund so diverted, as are also the persons to whom the fund is paid, who have knowledge of the breach of trust.</p> <p>The building committee of a corporation, charged with the duty both to the corporation and to the bond holders of seeing that the money derived from a sale of the bonds is applied to a designated purpose, are accountable in equity for mismanagement of the fund or neglect of duty, in the same way as are officers or directors of a corporation.</p> <p>When a building committee is authorized to make payments to a contractor from time to time as the work contracted for progresses, they have no authority to advance money to the contractor for his private purposes before any work has been done.</p> <p>An ice company, being about to erect an additional manufacturing plant executed a mortgage of the property to a trust company to secure an issue of bonds, and convenanted that the proceeds should be used exclusively for building and equipping the plant. The ice company appointed a building committee to supervise the work, and this committee made an agreement for the company with a contractor for erecting the plant, and a bank by which a loan was obtained on the bonds, placed to the credit of the contracter in a special account, to be drawn out upon checks executed by him accompanied by certificates or orders of the building committee, who were empowered to give the same in installments from time to time as the work on the plant progressed. Before any property was acquired by the contractor, or work done, he drew out a large part of this fund upon certificates of the building committee and applied the same to his own private purposes. The members of the committee either knew that the contractor’s checks were not given for any of the purposes to which the fund was devoted, or negligently delivered their certificates. Default was made in payment ofinterest on the bonds, the ice company became insolvent, the property was sold and the proceeds were insufficient to pay the bonds. The bill in this case, alleging the above facts, was filed by the receiver of the ice company and the trust company, mortgagee, against the members of the building committee, the contractor, and the persons to whom he paid the money so drawn out of the special account, claiming that the defendants were liable for the same. Held, that a demurrer to the bill was properly overruled, since it sets forth a case in which a fund impressed with a trust had been diverted, and the defendants who knowingly participated in such breach of trust, are liable to make good the loss so occasioned.</p> <p>Held, further, that the trust company, as the representative of the ¡bond holders, is interested in the recovery of the money which has been diverted from the trust and which should be applied towards the payment of the bonds, and is consequently a proper party plaintiff, although there was no privity of contract between the Trust company and the defendants; thatthe receiver of the ice company is also entitled to unite in the suit, because that company was one of the parties for whose benefit the special trust was created, and it is the duty of the receiver to aid in the recovery of any funds belonging to the company, although when received they may be applied to the payment of the bonds, for such payment will to that extent reduce the indebtedness of-the company.</p> <p>Held, further that the joinder of the trust company and the receiver in the same suit is proper since their interests are not conflicting.</p>

<p>Religious Societies—•Conveyance of Land—Sanction of Legislature— Adverse Possession Under Void Deed— Marketable Title.</p> <p>When a conveyance of land to trustees of a church is void, because not sanctioned by the Legislature as is required by Declaration of Rights, Art. 38, the entry into possession by the grantee, and the continuance of such possession for twenty years, perfects the title of the grantee against all persons not under legal disabilities.</p> <p>Declaration of Rights, Art. 38, provides that any sale of land to any religious sect without the prior or subsequent sanction of the Legislature shall be void, except a sale of land not exceeding five acres for a church, parsonage or burying ground. A lot of ground containing less than five acres was conveyed to a church in 1881 by a deed containing a clause of reverter if it should be diverted from the uses of the M. E. Church, but the deed did not express that the land was to be used for a church, parsonage or burying ground. No previous or subsequent sanction of the Legislature was given to the grant. The church entered into possession and so remained until 1906, when it contracted to sell the lot to the defendant, who alleged that the title thereof was not marketable. Upon a bill for specific performance, held, that the deed of 1881 is void, because it is a conveyance to a religious sect without the sanction of the Legislature, and although it conveys less than five acres, it does not declare that the land shall be used only for a church, parsonage or burying ground.</p> <p>Held, further, that since the deed is void, the reservations and limitations contained in it are likewise ineffective.</p> <p>Held, further, that the entry upon the land by the church under the void deed constituted adverse possession, and the continuance of this possession for twenty years perfected the title of the church against all persons not under legal disabilities.</p> <p>Held, further, that in 1901, the bar of the Statute of Limitations against the grantor in the deed, who was then living, became absolute, and the title of the church to the land is valid and such as the defendant should be required to accept.</p> <p>A lot of ground, the title to which stood upon the land records in the name of A, was conveyed in 1881 by a third party, who had no record title thereto, but recited a grant from A, to a church b]' deed which was void, because not sanctioned by the Legislature as is required by the Declaration of Rights. The church remained in possession until 1906, when the administrator of A conveyed the land to. the church by a deed ' which did receive the sanction of the Legislature. 'Held, that the title of the church to the lot is valid as against those claiming under A, the owner of record, by virtue of the deed of 1906, and as against the grantor in the deed of 1881 by virtue of adverse possession for more than twenty years.</p>

<p> Building Associations—Insolvency—When Dues May be Set off against Mortgage Debt. </p> <p>When a building association has become insolvent and is in process of liquidation, a member who owes it a mortgage debt may set off against the same, not only the premium and interest, but also the dues paid by him, although the covenant in the mortgage required the mortgagor to make payments until the stock becomes matured, and of the value of $100 per share.</p> <p>In such case, the insolvency of the association has rendered the original contract impossible of performance, and when the total payments made by the mortgagor as interest, premium and dues amount to the mortgage debt with interest at six per cent, he is entitled to have the mortgage released.</p>

<p> Illegality of Contract to Pay Additional Compensation to Trustee in Bankruptcy. </p> <p>A contract by which a creditor of a bankrupt agrees to pay to his trustee in bankruptcy a sum of money as compensation for his services, in addition to the amount which the Act of Congress establishing the system of bankruptcy (Act of 1898, ch. 541) declares shall be the full compensation for such services, is against public policy and void.</p>

<p> Extinguishment of Original Ground Rent as to Svb-Leased Lot—Description in Deed. </p> <p>When a lease executed more than seventy-five years ago made a nominal ground rent payable, if demanded, out of the demised premises and such rent has not been demanded for more than twenty consecutive years, it is presumed to have been extinguished.</p> <p>The lease of a parcel of ground reserved an annual rent of $48 payable thereout. The holder of the leasehold estate sub-leased a part thereof reserving an annual rent of $37, and covenanted in the sub-lease that the lot should not be subject to any other rent. Afterwards the party entitled to the $37 rent acquired the title of the holder of the $48 rent and made a deed conveying and releasing to the owner of said sub-leasehold interest all claim and demand against the lot on account of the rent of $48 to the end that the lot may be subject to the payment of $37 and no more. Held, that the original rent of $48 has been extinguished as to the lot sub-leased.</p> <p>A parcel of ground owned by the grantor passes under his deed without any specific description when the deed purports to convey “all the property and estate whatsoever and whersoever situate” of the grantor.</p>

<p>Appeal from the Circuit Court for Anne Arundel County (Reveul and Thomas, JJ.)</p>

<p>Appeal from the Circuit Court No. 2, of Baltimore City (WlCKES, J.)</p>

<p>Reformation of Contract to Sell Land — Evidence —Qualifying Words “More or Less” Relating to Quantity of Land Sold.</p> <p>Plaintiffs agreed to buy, and défendants to sell, a suburban lot of ground described in the written contract signed by the parties as situated at & the corner of two named avenues, fronting 297 feet more or less on one avenue, and fronting 647 feet more or less on the other avenue. A subsequent survey showed that the lot fronted 262 feet on the one avenue and 632 on the other. Plaintiffs filed a bill alleging that at the time of making the contract, the defendant’s agent represented that the words ‘ ‘more or less’ ’ had reference only to inches and asked that the contract be reformed by striking out from it, the words “more or less” and that the contract so reformed be specifically enforced. Held, that the evidence fails to establish the allegation of the bill and that the plaintiffs are not entitled to have these qualifying words striken from the contract. ' •</p> <p>The contract for the sale of a parcel of ground for the lump sum of $9,500 described it generally as situated at the intersection of two suburban avenues fronting 297 feet more or less on the one, and 647 more or less on the other. Actual measurement subsequently showed that the lot contained about 35 feet less on the former and 15 feet less on the latter. The purchaser’s bill for specific performance asked for an abatement of the purchase price to the extent of the shortage. No misrepresentations were made by the seller, who was in fact ignorant of the exact number of front feet in the lot. Held, that the words “more or less” qualified the statement as to the number of front feet and the purchaser is not entitled to an abatement on account of the deficiency.</p>

<p>Construction of a Lease to a Railroad Company — Right to Lay Tracks Across Streets Owned by Lessor—Injunction Requiring Removal of Tracks Placed ifithojtt Authority—License.</p> <p>In 1873, the Canton Company owned a large tract of land adjoining Baltimore City and fronting on deep water. A number of streets and avenues were designated on the map of the land but few of them were opened or used. The Union Railroad Company constructed a railway from a point in the city to the land of the Canton Co. with several branches. When such was the situation of the property, the Canton Company leased to the Northern Central Ry. Co. for ninety-nine yeárs a number of the lots as designated on the map. Twelfth avenue as there designated ran between one part of the land leased situated on the water front and another part. The lease provided that the Northern Central Ry. Co. should have the right to lay tracks on certain streets and avenues and make connections with the Union Railroad, and that none of the streets and avenues laid down on the plat should be open-through the ground leased except C street, Twelfth avenue and Tenth avenue. The lease gave an express right to lay ' tracks on Eleventh avenue but gave no right to lay tracks across Twelfth avenue. The Railway Co. built an elevator and ore pier on the water and connected the same with its road by building five sets of tracks across Twelfth avenue. In 1906, that company constructed ten additional tracks across Twelfth avenue. Upon a bill by the Canton Co., for an injunction to restrain the construction of the tracks .and to compel their removal, held, that all the trackage rights of the Railway Co. over the streets of the Canton Co.’s property were precisely defined in the lease, and the Railway Co. has no right to lay tracks except upon the slreets mentioned in the lease, and that under the lease, the Railway Co. had no right to lay tracks across Twelfth avenue.</p> <p>Held, further, that since the Railway Co. had laid five .tracks across Twelfth avenue with the license or permission of the Canton Co. the latter company cannot now revoke the license and require the removal of those tracks without making compensation.</p> <p>Held, further, that a mandatory injunction should issue, requiring the Railway Co. to remove the ten additional tracks placed across Twelfth avenue and that the right of the Railway Company to Construct additional tracks there, must be acquired by comdemnation or agreement with the Canton Company.</p> <p>When a Railway Company lays tracks without authority on plaintiff’s land, a mandatory injunction requiring their removal will be issued.</p> <p>When a Railway Company has laid tracks on certain land under a license from the owner, the licensor cannot revoke the license and require their removal without making compensation.</p>

According to the course of dealing between the plaintiff, an importer of bananas and tropical fruit and the defendant railway company,… Held: that the plaintiff’s requisition, as above set forth, was not notice except as to the cars required for June 27th, and as to the other cars an additional notice to the defendant was necessary, and since plaintiff had failed to give such notice designating reasonably in advance the time whert the other cars would be required he is not…