Volume 114 — Maryland Reports

<p>Appeal from the Circuit Court for Cecil County (Adkins ■and Hopper, LL). •</p>

<p> Testimony in Rebuttal in Equity—Bill to Vacate Contract for False Statements—Insufficient Evidence of Fraud—Belay in Disaffirming Contract—-Executed Contract by Infant. </p> <p>A party to an equity cause should not be allowed to testify in rebuttal as to matters which were alleged in the bill as the principal ground of the relief asked for, and concerning which he could hare giren his testimony in chief before the evidence of the defendant was taken.</p> <p>.Plaintiffs, as partners, bought 250 of the 300 shares of a Foundry Company from the defendants, and after the. business had been turned over to them filed the bill in this case asking that the contract be annulled on the ground of false statements made by the defendants concerning the business of the company. These statements were that the Foundry Company did an annual business of a certain amount; that a trial balance submitted to the plaintiffs showed a certain annual profit, and that the defendants -would furnish to the company a certain amount of business monthly. Upon an examination of the evidence it is held, that these allegations are not sustained; also that the contract between the parties was made before the trial balance was produced; that the books of the company, which fully disclosed all of its affairs, -were within the control of the plaintiffs before the transaction was completed, and that consequently the plaintiffs are not entitled to the relief asked for.</p> <p>One who is induced by the fraud of another to make a contract is put to an election, when he discovers the fraud, either to avoid the contract or to abide bjr it. If he elects to avoid, he must act -within a reasonable time after discovering the fraud; and if thereafter he deals with'the subject-matter as his own property he cannot disaffirm the contract.</p> <p>An infant and an adult, as partners, bought- certain property, and afterwards filed a bill to vacate the contract on the ground of fraud. The evidence fails to-show that any fraud .was practiced; and since the infant plaintiff had enjoyed the benefit of the contract, which was executed, he cannot recover from the defendant any part of- the money paid by the partnership.</p>

<p> General Exception to Testimony in Equity—Deed Vacated Because. Vrocured by Fraud. </p> <p>When a° part of the testimony of a witness in an equity cause relates to transactions had with a deceased person and is incompetent, and a part of the testimony relates to other matters and is competent, a general exception to all of the testimony of the witness, or a motion to strike out all of it, without designating the particular portions objected to, is properly overruled.</p> <p>Plaintiff alleged that she was induced to execute a. deed by reason of the false statement made to her by her niece that she was witnessing her sister’s will. The effect of the deed was to reduce the interest of the plaintiff in certain real property from a fee simple to a life estate. Held, that the allegations of the bill are sustained by the evidence and that consequently the deed should be annulled and set aside.</p>

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

<p> Constitutional Law—Power of Governor to Suspend Civil Officers Pending Trial of Charges Against Them—Power of Governor to Make Temporary Appointment in Place of Officer Suspended. </p> <p>The Act of 1900, Chap. 15, authorizes the Governor to appoint, by and with the advice and consent of the Senate, three persons to constitute the Board of Police Commissioners for Baltimore City, who shall hold office for the term of two years. The Constitution, Art. 2, sec. 15, provides: “The Gov- ' ernor may suspend or arrest any military officer of the State for disobedience of orders or other military offense, and may remove him in pursuance of the sentence of a court-martial; and may remove for incompetency or misconduct all civil officers who receive appointment from the Executive for a term of years.” Ho other power of removal is given to the Governor by statute’ or by the Constitution, and no express power to suspend civil officers. The Constitution of 1776 did authorize the Governor to suspend, as well as to remove, civil officers, hut the power to suspend was omitted from the Constitution of 1851, and the present Constitution. Held, that the Governor has no express power to suspend the Police Commissioners appointed by him with the consent of the Senate, pending the trial of charges against them of incompetency and misconduct, and that no such power can be implied from the existence of the power to remove for cause after trial.</p> <p>Held, further, that since, under Constitution, Art. 2, sec. 11, the Governor has the power to appoint to the office of Police Commissioner, during the recess of the Senate only in case of a vacancy occurring in the office, and since the suspension of such officer does not create a vacancy, the Governor has no implied power to make a temporary appointment to the office, pending the investigation of charges against a Commissioner.</p>

<p>A testatrix devised certain property to a trustee, with power to sell and reinvest, and directed him to pay the income to P. during life, but in case P. should not abstain from his intemperate habits, the trustee was directed to withhold the rents and profits and to invest same. Upon the death of P. the trustee was directed to hold the property or its proceeds and the rents and income directed to be invested for the use and benefit of certain named charitable and religious corporations, “the annual rents, profits, interest and income of which I desire to be equally divided among and paid to said institutions as same is received by said trustee.” Held, that it was not tbe intention of the testatrix that the trustee, after the death of P., should pay the income of the trust property to the charitable institutions; that the income referred to in the gift to them was the income accumulated during the life of P. and not paid to him; that the trust created by the will ceased upon the death of P., and consequently no perpetuity was created, and that it was then the duty of the trustee, in addition to the corpus of the estate, to pay over to the charitable institutions, any profits and income not paid by him to the life tenant.</p>

). Plaintiff's Ifth, Prayer.—If the jury shall find from the evidence that the defendant is a business man and was able to read and write and that he signed the contract with the Lyon-Taylor Company testified to in this case, and that he subsequently, a week or more later, accepted or signed the drafts in accordance with the said contract then the said defendant is thereby presumed to have known' and agreed to the terms of the said contract, and that he cannot now claim that…

<p> Specific Performance—Misrepresentation as to Subject-Matter—Title of Vendor. </p> <p>Specific performance will not be decreed of a contract to purchase land when the defendant was induced to enter into it on account of misrepresentations as to the extent or boundaries of the land, although such misrepresentations were made in good faith and without knowledge on the part of the vendor of their inaccuracy.</p> <p>Defendant agreed to buy a tract of land known, as the M. farm, paid part of the purchase money, agreed to give a mortgage for the balance when the deed was executed to him, and entered into possession. At the time the agreement was made, the vendor pointed out the lines of the farm and said that it bounded for some distance on a county road. It was agreed that the deed to be executed would contain an accurate description, after a survey should be made. The survey disclosed the fact that the boundary of the farm fell short of extending to the county road by several hundred yards. Held, that on account of this misrepresentation as to the subject-matter, the contract of purchase should not be specifically enforced.</p> <p>When a party whose interest in certain land is defeasible in the event of his death without issue, a contract to sell the land in fee simple is not enforceable by his heirs at law after his death.</p>

<p>Appeal from the Court of Common Pleas of Baltimore City (Heuisler, T.).</p> <p>The cause was argued before Boyd, C. J., Briscoe, Pearce, Schmuckkr, Burke, Thomas, Pattisoy and Ureter, JJ".</p>

J.). In the suit by the appellee Connor there was a judgment on verdict for the plaintiff for $350. In the suit by the appellee Goodman there was a judgment on verdict for the plaintiff for $1,000.

), where there was a judgment on verdict for the plaintiff for $3,500.

<p> Prayer Not Referring to the Pleading—Implied Warranty of Fitness in Sales—Contract Cancelled by Buyer After Part Performance—Recoupment in Action to Recover Price of Prior Deliveries. </p> <p>When a granted prayer does not refer to the pleadings, its correctness must be determined entirely by a consideration of the evidence.</p> <p>When a buyer orders articles not manufactured by the seller, and he has an opportunity to inspect the same before using them, there is no implied warranty of their quality. And if he returns to the seller some of the articles delivered because of defects, he is not entitled, in an action against him, to recover the price of those not returned, to recoup any damages arising from the return of the defective articles.</p> <p>A contract for the purchase of lumber of specified kinds at designated prices provided' that in case the seller should fail to supply any of the material within three days after a request, thereupon the agreement should become void and the buyer liable only for the price of lumber delivered down to and including the day of the stoppage of deliveries. In an action to recover the price of lumber delivered to the defendant before his cancellation of the contract under this clause and also the price of certain lumber delivered to and accepted by the defendant thereafter, held, that the defendant is not entitled to recoup damages arising from delay in the delivery of lumber before cancellation of the contract.</p> <p>Held, further, that a prayer offered by the defendant is erroneous which instructs the jury that, if they find the contract was cancelled, then the plaintiff is not entitled to recover for any lumber not delivered down to the date of the cancellation. This prayer submits to the jury to find whether the contract was duly cancelled, which is a question of law, and also it denies the right of the plaintiff to recover for the lumber supplied thereafter and accepted by the defendant.</p>

<p> Banks—Payment of Check in Ignorance of Insolvency of Drawer, Indebted to the Bank. </p> <p>If a bank pays a check drawn on it by a depositor at a time when it has claims against him greater than his deposit' and in ignorance of the fact that the depositor had then become insolvent and that receivers had been appointed for him, the bank is not entitled to recover the amount of the check from the payee on the ground that the payment was made by reason of a mistake of fact. As between the holder of the check and the bank, the transaction is closed when the payment is made.</p>

<p>Appeal from the Baltimore City Court (Elliott, J.).</p>

<p>Appeal from the Circuit Court for St. Mary’s County (Camalier, J.).</p>

<p> Newspaper Report of Market Prices—Trover for Conversion of Shares of Stock—Instructions—Harmless Error. </p> <p>The newspaper report of the market prices of goods and stocks is admissible in evidence to show such prices when it is proved that the newspaper is accepted by the persons dealing in those things as trustworthy in stating the market prices. In such case, it is not necessary to show how the newspaper obtained the information so published. But if a newspaper is not recognized by the trade as furnishing reliable statements concerning the market prices, there must be evidence to show how its published information as to the particular market price was obtained, before it can be admitted in evidence.</p> <p>When the evidence in the case is sufficient to show that at the time the plaintiff demanded from the defendant the return of his property, the latter had it within his power to return the same, then the refusal to do so is evidence of a conversion of the property by the defendant sufficient to support an action of trover.</p> <p>Trover lies to recover damages for the conversion of shares of stock.</p> <p>Plaintiff gave to defendant a certificate for forty shares of stock in a mining company, endorsed in blank, with directions to have it sold for not less than $13.50 per share* Subsequently the plaintiff demanded the return of the stock, without getting it. More than a year afterwards, the defendant offered to the plaintiff a certificate for forty shares of stock which had been issued in the defendant’s name. Plaintiff refused to accept this. In an action of trover, alleging a conversion of the shares so delivered to the defendant, there was evidence tending to show that the defendant had sent the stock to a broker in New York, by whom it was sold after plaintiff had demanded its return, and that the defendant had received the benefit of the broker’s act. The trial Court instructed the jury that if they found that the plaintiff delivered the shares of stock to the defendant to be sold by him for -the plaintiff at not less than $13.50 per share in cash, and that thereafter the plaintiff demanded the return of said stock or the said price thereof, and that the defendant refused to return the stock, then the plaintiff is entitled to recover such sum as the jury may find to be the value of the stock at the time of demand and refusal. Held, that the defendant is not entitled to except to this prayer on the ground that there was no evidence that he was directed to sell for cash, since a sale is presumed to be for cash unless otherwise proAÚded.</p> <p>JIM, further, that although according to the evidence, the plaintiff demanded the return of the stock, and not the sum of $13.50 per share, the defendant was not injured by the assumption in the prayer that the plaintiff demanded either the stock or its said value.</p>

<p> Laying of Railroad Trade in Public Street Gutting Off Access to Land of Abutting Owner—Proof of Extent of Injury—Diminution in Marlcet Value. </p> <p>When the construction of railroad tracks in a public street destroys or impedes access to the land abutting thereon, the landowner is entitled to recover damages for such injury, since his right to the use of the street for access to his land is a property right.</p> <p>In such case it is not necessary for the landowner to prove that the rental value of the property has been diminished by the railroad tracks, but he is entitled to recover for a diminution in' its market value.</p> <p>Plaintiff was the owner of a lot of ground abutting for about three hundred feet on a public street in Baltimore City, the -bed of which was owned by the municipality. The lot was unimproved and unusued and was elevated above the street level. The street itself was not used as such and was not curbed. Three tracks of the defendant railroad company were laid on the street, leaving a space of about twenty-four feet in front of plaintiff’s lot between the nearest track and where the curb would be. When that was the situation of the property, the defendant company, acting under the authority of a municipal ordinance, laid on the street an additional " track, leaving between it and the sidewalk line in front of plaintiff’s lot only a space of some ten feet, and also raised the roadbed of the street, the result of which was to make impossible any use of the street at that point. In an action to recover damages for the injury to his land so caused, the plaintiff’s evidence was to the effect that his lot had a certain market value before the construction of the additional track; that such construction destroyed access from the street, and in order to obtain access, it would be necessary to devote a part of tbe lot to tbat purpose, and tbat tbe land remaining afterwards would have a certain market value less than previously. Held, tbat tbe plaintiff is entitled to recover damages for tbe injury to bis property tbus caused; tbat this evidence is legally sufficient to show tbe extent of bis loss, and tbat it was not necessary for tbe plaintiff to prove a diminution in tbe rental value of tbe lot, but tbat proof of tbe diminution of its market value is sufficient.</p>

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

2 of Baltimore City (Lehmayer, J.). The same question was involved in the appeal of Christina Johanna Hettinger against the same appellees from a decree of the same Court made hy Dobler, J.

<p> Board of School Commissioners of Baltimore City Not Authorized to Appoint Prohationary Teacher Subject to Dismissal. </p> <p>The Board of School Commissioners of Baltimore City has the power under Bocal Code, Art. 4, sec. 99, to subject a candidate for the position of teacher in the public schools to the test of actual work in teaching in order to ascertain his aptness to teach, as a part of the examination of such candidate. But the Board is not authorized to appoint a candidate as a probationary teacher for one year, making the appointment subject to cancellation during that year. The Board can only appoint regular teachers ujion the nomination- of the Superintendent of Instruction after an examination as to the fitness of the candidate.</p> <p>Local Oode of Baltimore City, sec. 99, provides that the Board of School Commissioners shall confirm or reject all nominations of teachers in the public schools made to it from graded lists by the Superintendent and his assistants, and that any teacher may be removed by said Board on the recommendation of the Superintendent after charges preferred and trial had. A resolution adopted by the School Board directed that no candidate should be appointed a regular teacher whose aptness to teach had not first been tested by the Superintendent during a probationary period of twelve months prior to such appointment. The petitioner in this case was appointed by the Board a teacher in the schools under the condition that her aptness to teach be made manifest by her work during twelve months, and that if, during that period, her work should be deemed unsatisfactory by the Superintendent, the appointment should be subject to cancellation, on ten days’ notice. This appointment was made without a nomination to the Board by the Superintendent. Before the end of the twelve months’ period, the petitioner was notified by the Board that the Superintendent had reported her work as teacher to be unsatisfactory, and that her appointment was cancelled. She then filed the petition in this case alleging that she had been removed as teacher without charges having been preferred against her and a trial had; that the Board had no power 'to make a conditional appointment of her as a probationary teacher, and that since the condition was void, she was a regular teacher and could be removed only in the manner prescribed by statute. Reid, that the appointment of the petitioner, was void, not only for the want of a preceding nomination, but becaues o£ tbe condition contained in tbe appointment, it not being within the power of the Board to make such conditional appointment, and that since the appointment was void, the petitioner never became a teacher within the meaning of the statute, and that consequently she was not entitled to have charges preferred against her and a trial had before the Board could refuse to permit her to teach in the schools.</p>

<p>Appeal from the Baltimore City Court (Elliott, J.).</p>

<p> Construction of a Will—Absolute Gift Afterwards Declared to be Held in Trust—Rule Against Perpetuities. </p> <p>A testator, after the termination of a life estate therein given to his wife, gave one-fourth of his estate to each of his three daughters, and the other one-fourth part to two named grandchildren. He then provided that a certain store should not he sold until after the death of his last surviving daughter, and until his youngest grandchild should become of age; that then it should be sold and the proceeds divided equally among his grandchildren. By a subsequent clause of the will, he provided that the legal title to all of the property bequeathed should be held by two trustees for the remaindermen. Held, that the gift of one-fourth of the estate to the two grandchildren is to be construed in connection with the subsequent clause of the will, by which the testator declared his will and wish that all the property should be held in trust, and that therefore, this one-fourth part is to be held in trust until the time appointed for sale and distribution.</p> <p>Held, further, that the provision directing that the store should not be sold until after the death of the last surviving daughter of the testator and the coining of age of his youngest grandchild is valid, and not repugnant to the nature of the estate previously given to the testator’s named grandchildren.</p> <p>Held, further, that this provision does not violate the Buie against Perpetuities, since the grandchildren must be born within a life in being at the death of the testator.</p>

<p>Appeal from the Circuit Court for Anne Arundel County.</p>

<p> Appeal—Inconsistent Contentions—Accident at Railway Crossing—Negligence of Driver—Duty to Loolc and Listen Continues Until Reaching Trade. </p> <p>In an action to recover damages for the killing of the plaintiff’s horses while being driven over a railway crossing, the declaration stated that the driver was the servant of the plaintiff and was using ordinary care at the time of the accident, and at the trial, the plaintiff asked that the question of the driver’s contributory negligence should be submitted to the jury. Held, that, on appeal, the plaintiff will not be heard to say that the driver was not his servant, and the horses were not being used in his business at the time of the injury, and that therefore he was not responsible for the negligence of the driver.</p> <p>The rule that when the view of the tracks at a railway crossing is obstructed, it is the duty of a person about to go upon them to stop, look and listen for approaching trains, is no1 complied with by doing so at a point where obstructions prevent him from seeing, and when, if he had stopped nearer the track in a place of safety, he could have seen and heard the train. It is, in such case, the duty of the driver to continue to look until he reaches the track.</p> <p>The driver of a wagonette drawn by two horses and containing seven persons approached a railway crossing in the country. Both the road on which he was driving and the railway tracks were in cuts near the crossing. The driver knew that trains were frequently running there at high speed and was well acquainted with the dangerous character of the crossing. When the horses reached the track they were struck by a fast train and killed, but the persons in the wagon were not seriously injured. In an action to recover damages, the plaintiff’s evidence was that no whistle or bell was sounded for the train; that the driver stopped thirty feet from the crossing and looked and listened, without hearing a train, and that then he drove rapidly on the crossing. The evidence in the ease established that from the point where the driver testified that he stopped, in the cut, neither he nor his passengers could see a train coming from the north except for a short distance, but that, beginning at a point twenty feet from the nearest track, there was a clear view up the track for over a mile. Held, that the driver was guilty of gross negligence in driving rapidly over the crossing after he had only stopped and looked for a train at a point whence it could not be seen, and when it could have been seen and heard from a safe place nearer the track if he had then looked and listened.</p>

<p>Appeal from the Court of Common Pleas (Heuisler, J.).</p>

<p> Validity of Will of Leasehold Property Executed by an Infant. </p> <p>Code, Art. 93, sec. 316, provides that no will, testament or codical shall be good and effectual to pass any interest or estate in any lands, tenements, or incorporeal hereditaments unless the person making the same, if a male, be of the full age of twenty-one years, and, if a female, of the full age of eighteen years. Meld, that this provision has relation to freehold estates in' land, and that since a leasehold estate is a chattel, a will bequeathing the same, executed by a male nineteen years of age and of sufficient discretion, is valid.</p> <p>The circumstance that the owner of a leasehold interest in land has the option of redeeming the rent and acquiring the fee simple does not constitute such leasehold interest an estate in land within the meaning of Code, Art. 93, sec. 316.</p> <p>A male infant over the age of fourteen years, if of sufficient discretion, may make a valid will of personal property.</p>

<p>Appeal from the Circuit Court for Anne Arundel County (Brasi-iears, L).</p>

<p>Appeal from the Superior Court of Baltimore City (Harlan, C. J.).</p>

<p>Appeal from the Circuit Court for Baltimore County (Duetcah", J.).</p> <p>The cause was argued before Bovd, O. J., Bbiscoe, Peabge, Schmtjckeb, Bdbke, Thomas, Pattison and Ubheb, JJ.</p>

<p>Appeal from the Superior Court of Baltimore City (Harlan, C. J.).</p>

<p> Interference With Contract Between Third Parties—Liability of Party Inducing a Person to Commit Breach of Contract to That Person—Evidence—Instructions. </p> <p>The person who unlawfully or maliciously causes one of the parties to a contract to break it is liable in damages to the person who is thus made to break his contract for the loss he suffers in consequence of such unlawful act.</p> <p>In an action to recover damages suffered by the party who was compelled by the threats of the defendant to break his contract with a third person, it is no defense that he was' also a wrongdoer by breaking his contract, and that by the suit he is seeking to take advantage of his own wrong.</p> <p>Plaintiff, a dealer in ice, made a contract with the defendant company, an ice manufacturer, for the purchase of ice for two years, at a varying scale of prices. Those for the months from June to October, 1908, were $2.25 per ton. Each party agreed not to sell to, or interfere with, the custourers of the other. In June, 1908, plaintiff made a contract with a dairy company to sell to it ice at $5.00 per ton. The defendant company then notified the plaintiff not to sell to the dairy company, which was not a customer of the defendant, and threatened that if plaintiff did so defendant would not supply in the future. There was at that time a scarcity of ice, so that plaintiff cquld not obtain a supply except from the defendant. In consequence of this notice and threat, the plaintiff was obliged to break his contract with the dairy company, and the defendant sold ice directly to the dairy at $5.00 per ton, and the plaintiff lost the profit he would have made under his contract with the dairy company. In an action to recover damages for the loss so occasioned, held, that the notice and threat of the defendant company, which obliged the plaintiff to refrain from carrying out his contract with the dairy, was an unlawful act causing the damage to the plaintiff for which he is entitled to recover.</p> <p>Held, further, that the fact that the plaintiff could have bought ice from other persons does not defeat his right to maintain the action; nor-is the plaintiff a joint tort feasor with the defendant.</p> <p>In such action, evidence is admissible to prove the contract between the plaintiff and the dairy company.</p> <p>The testimony of a witness as to what a certain person said to him is hearsay.</p> <p>Evidence of the declarations of a party made more than six months after the commission of the wrong complained of are not part of the res gestee.</p> <p>A prayer instructing the jury that “under the pleadings and evidence in the case” the plaintiff is not entitled to recover does not raise the question of the legal sufficiency of the evidence, but relates to the sufficiency of the declaration.</p>

<p> Heal Estate Brolcer Not Entitled to Commissions When He is Interested in the Purchase Made—Sufficiency of Evidence to Show That Brolcer Was the Procuring Cause of Sale—Sale by Owner Not Aware That Purchaser Had Been Procured by Brolcer—Employment of Two Brohers—Lapse of Time as Affecting Brolcer’s Authority—Revocation of Employment. </p> <p>A real estate broker employed to sell land who has himself an interest in the purchase is not entitled to recover commissions on such a sale unless the vendor knew that the broker was purchasing in part for himself and assented to the arrangement. The duty of the broker as agent of the vendor is to obtain the highest price and his personal interest as a purchaser is to buy at the lowest price. He cannot be allowed compensation for his services in effecting a sale when there is such a conflict between his duty as an agent and his personal interest as purchaser.</p> <p>Plaintiff sued to recover commissions on the sale by defendants of a farm to one O. The defendants did not know at the time that O. had been procured as a purchaser by the plaintiff. Some months before the sale, the defendants had authorized plaintiff to obtain an offer for the property. Plaintiff’s evidence was that he had first called C.’s attention to the farm and asked him to buy it, and afterwards said that if C. so wished he would unite with him in making the purchase. The defendant’s evidence was that the plaintiff’s proposition to C. was that they should buy the farm together, and that this was not agreed to hy C., who some time afterwards bought the farm directly from the defendants. Held, that, assuming that the plaintiff was the procuring cause of the sale, if it he found as a fact by the jury that the plaintiff called C.’s attention to the farm hy the proposition that they should buy the same on joint account, the plaintiff is no more entitled to commissions on the sale afterwards made to O. alone than he would he if the sale had heen made to them jointly.</p> <p>Held, further, that the evidence in the case is legally sufficient to show that plaintiff’s proposition to O. was not essentially that they should become joint purchasers, and also to show that the plaintiff was the procuring cause of the sale after-wards made, and that these questions should have heen submitted to the jury under instructions in connection with the defendant’s evidence.</p> <p>If a broker who has heen authorized to obtain a purchaser „for land is the procuring cause of the sale afterwards made because he first called the attention of the purchaser to the property, he is entitled to commissions on the sale, although the vendor did not know that the purchaser to whom he sold had been procured by the efforts of the broker.</p> <p>If the owner of the land has employed two brokers and one of them produces a purchaser, and the owner, having no knowledge or notice that the other broker really procured that ■purchaser, pays in good faith the commissions to the one so producing him, he will not be required to pay commissions also to the other broker.</p> <p>When a broker empowered to sell a farm becomes the procuring cause of a sale made five months after his employment, the offer to him will not be held, as matter of law, to have lapsed by efflux of time, so that his acceptance, by performing the services contemplated, comes too late to make a contract entitling him to commissions.</p> <p>After negotiations begun through a broker’s intervention have virtually culminated in a sale, he cannot be discharged so as to deprive him of his commissions when he was thus the procuring cause of the sale made.</p>

<p> Injunction to Restrain Interference With Brain Pipe—Possession and Use of Brain Sufficient Without Proof of Title Against Trespasser—Right of Befendant to Pile Answer When Bemurrer Overruled. </p> <p>A party in possession of land and of drain pipes used in connection therewith is entitled to an injunction restraining a trespasser from interfering with the drain or making use of it. In such case it is not necessary that the plaintiff’s title to the land should be fully stated in the bill, nor that evidence of the title should be filed as an exhibit. Nor is it necessary for the plaintiff to allege that he was the owner of the drain. If his right to it is only an easement, it is entitled to protection.</p> <p>Plaintiff’s hill alleged that she had been in possession of a certain house and lot for a long time and had used in connection with it a drain pipé, running down the middle of an alley in the rear of the lot, for the purpose of carrying off sewage and water; that the drain had been built for the exclusive use of plaintiff’s house and certain adjoining properties; that it was insufficient in size for this purpose and had frequently become choked so that the water and refuse from it was backed up on plaintiff’s lot, which was lower in grade than the other houses using the drain, with one exception; that the defendant was the owner of a house on the opposite side of said alley and, without any right so to do, had made a connection with said drain pipe and discharged into it water from his house; that this wrongful act exposed plaintiff to an increased danger of overflow from the drain. The bill asked for an injunction. Held, that a demurrer to the bill was properly overruled and that the plaintiff is entitled to the relief asked for, since injury from defendant’s wrongful act may reasonably be anticipated, and an action at law would not afford an adequate remedy.</p> <p>When a demurrer to a bill asking for an injunction is overruled, the Court should not at once issue the writ in final and absolute terms, but should afford the defendant an opportunity to file an answer.</p>

<p>Eminent Domain—Bight of Railroad Company tp Condemn Unoccupied Pari of Private Cemetery—Restriction in Charter of Railroad as to Width of Roadbed— Right to Talce Additional Land.</p> <p>A railroad company with general powers of eminent domain has the right to condemn for its use the unoccupied part of a private cemetery owned hy a religious corporation.</p> <p>The provisions of Code, Art. 23, sec. 133, relating to the opening of streets and roads through the property of any cemetery company incorporated under said Article, do not apply to a tract of land owned hy a religious corporation, part of which is used as a private cemetery.</p> <p>The charter of the Baltimore and Ohio Railroad Company authorized it to construct a railroad not exceeding 66 feet wide. Held, that this restriction is as to the width of the road, and not as to the width of the land that it may be found necessary to take for the purpose of relocating the tracks.</p> <p>The question whether a railway company has the right under its charter to condemn certain land for an addition to its roadbed is a matter exclusively within the jurisdiction of the Court to which the inquisition is returned, and no appeal lies from its action in the premises.</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p> <p>The cause was argued' before Boyd, O. J., Briscoe, Pearce, Schmuckee, Burke, Thomas, Pattisoe and Freer, JJ.</p>

<p>Seller of Property Who Has No Title Cannot Recover Purchase Price—Equitable Plea in Action on Single Bill— Parol Evidence as to Location of Oyster Lois.</p> <p>A party who has no title to property sold by him cannot recover on the single bill.given for the purchase money.</p> <p>In an action upon a writing obligatory under seal for the payment of a sum of money, a plea on equitable grounds states a good defense when it alleges that the single bill was given in consideration of the transfer to the defendant of certain oyster lots, which the plaintiff represented as being situated in the State of Maryland, and that, he had a right to transfer under the laws of Maryland, but that in fact the lots were situated in the State of Virginia, and the plaintiff had no right to transfer the same. In such case, a Court of equity would -enjoin the prosecution of a suit or the enforcement of a judgment on the writing obligatory, and consequently the plea is good by way of equitable defense.</p> <p>When the question is whether certain oyster lots sold by the plaintiff to the defendant were within' the State of Maryland or in the State of Virginia, a witness may be asked where the lots are located, where the line runs between the two States in the waters where the oyster grounds in question were situated, and what was recognized by the community generally as the dividing line between the two States.</p> <p>Hearsay testimony and evidence of general reputation are admissible to show what the boundaries of land are.</p>

<p> Gift of Savings Bank Deposit Placed in Name of Donor in Trust for Herself and Donee, Balance to the Survivor, on Death of Hither—Donee Hntitled on Death of Donor. </p> <p>A woman who had certain sums of money on deposit in two sayings banks caused the deposits to be transferred to her name in trust for herself and her granddaughter, joint owners, subject to the right of either, the balance at the death of either to belong to the survivor. A -few months after-wards the granddaughter drew out most of the money and deposited it in another bank in her own name only. The grandmother filed the bill in this case alleging that she intended to retain the use of the money during her lifetime, and only designed that the granddaughter should get it at her death, to be distributed in accordance with private instructions. The granddaughter answered that the change in the deposit had been made with the consent and upon the advice of her grandmother. The latter died pending the suit. The evidence in the case is held to show that the grandmother intended that the money in question should belong to her granddaughter at her death; that no fraud or undue influence had been exercised upon her; that the withdrawal from the bank was made with her knowledge, and that now the granddaughter is entitled to the fund.</p>

<p>Validity of Assignment of Life Insurance Policy to Greditor— Assignee Entitled to Entire Proceeds of the Policy.</p> <p>At a time when A. was indebted to B., and when it was contem-. plated that further advances would be made, a policy of insurance on the life of A. was issued. In pursuance of an agreement previously made, A. assigned this policy to B. in absolute terms, and the assignment stated that “this transfer is not made for the purpose of securing any indebtedness or as collateral security, but with the intent and for the purpose of divesting the assignor of all title to and interest in said policy.” The premiums on the policy were paid by B., and their payment was a part of the consideration of the . assignment. At the time of A.’s death he was indebted to B. in the sum of $1,029. The amount of the policy was $2,500, and it was claimed both by B. and the administrators of A. Held, that B. had an insurable interest in the life of A.; that the policy was issued for his benefit as a creditor; that the assignment was a bona fide business transaction, and not a device to cover a wagering contract on the life of A.; that the assignment is not invalidated by the statement in it that it -was not for the purpose of securing an indebtedness, and that B. is now entitled to the entire proceeds of the policy.</p>

<p> Original Lessee Who Covenanted to Pay Taxes Cannot Buy the Demised Property at a Tax Sale, Although After Assignment of the Leasehold Interest. </p> <p>A lessee who has covenanted to pay the taxes on the demised land, as well as the annual rent, cannot, by purchasing the property at a tax sale, made for non-payment of taxes, become the owner thereof as against the lessor, although he may have assigned the leasehold estate before the tax sale.</p> <p>In this case, after the lessee purchased the property at the sale for non-payment of the taxes which he had covenanted to pay, he conveyed it to his daughter. A bill by the owner of the rent alleged that the conveyance was made in pursuance of a scheme to defraud the plaintiff, and asked that the sale and the deed from the collector to the lessee, as well as the deed from the lessee to his daughter, be declared null and void, and that the plaintiff be declared the owner of the reversionary interest in the land. Held, upon the evidence, that the plaintiff is entitled to the relief asked for.</p>

<p>Constitutional Law—Change in Remedy Given to Creditors of Corporation Against Stockholders by Act 1908, Chap. 305.</p> <p>Prior to the Act of 1908, Chap. 305, each creditor of a corporation was entitled to bring an action at law against any stockholder therein who had not fully paid his subscription for the stock, and the creditor could recover from him to the extent of the balance due on the stock subscription. The Act of 1908, Chap. 305, provided that the liability of stockholders to creditors of the corporation should be enforced only by bill in equity on behalf of all the creditors against all the stockholders. After the passage of this Act, plaintiff instituted suit against the defendants to enforce their liability for unpaid subscriptions for the capital stock of the corporation of which the plaintiff was a creditor. Held, that this ' Act is constitutional and did not impair the obligation of the -contract within the meaning of the Federal Constitution, since it afforded to the creditors of the corporation a more efficient remedy against the stockholders than that which previously existed.</p> <p>Held, further, that the existing rights of the creditors of the corporation against stockholders were not affected by the general corporation law, Act of 1908, Chap. 240, which contained a provision expressly reserving their rights against stockholders.</p>

), where there was a judgment on verdict for the plaintiff for $1,500.

<p> Liability of Municipal Corporation and Its Contractor for Negligence in the Construction of a Sewer Trench Injuring Adjoining House—Bight to Lateral Support—Evidence—Opinions of Experts—Pleading. </p> <p>A count in a declaration against a municipality and its contractor for building a sewer wbicli alleges that tbe defendant so located and constructed a sewer in the alley adjoining plaintiff’s house that the earth supporting the walls of the house and its foundation settled and sank, whereby the house was injured, is bad on demurrer, since the defendants had the right to construct the sewer, and this count does not charge that they did the work improperly or negligently.</p> <p>Plaintiff’s house, which was new and well built, abutted on an alley in which the defendants, a municipal corporation and its contractor, constructed a sewer. The trench for the sewer some eight feet ten inches deep was dug on the side of the alley nearest to plaintiff’s house and about six feet from the wall. This trench was allowed to remain open its full length for more than three wpeks, during which time there were several severe rainstorms and the water was not pumped out of the trench, but was allowed to stand until it soaked into the ground. After the earth was thrown back into the trench, an inch and a-half water pipe, which crossed the trench three feet below the surface adjoining plaintiff’s house, was broken. Such pipes should be supported when the trench is filled, but this pipe was not supported, and'it was broken by the weight of the earth thrown on ih Sheet piping or lagging was used in the construction of the trench and was left in it when it was filled. The failure to cut off the lagging below tbe surface allowed tbe water to run down behind it, making a cavity into which one witness, just before the trial, poured several buckets of water, which disappeared. After the construction of the sewer, the walls and ceilings of plaintiff’s house began to crack' and the cracks began . to grow larger, and the rear wall fell out of plumb. Held, that this evidence is legally sufficient to show negligence on the part of the defendant in the construction of the sewer, resulting directly in injury to the plaintiff and that consequently it was error to instruct the jury that their verdict must be for the defendants.</p> <p>A municipal corporation is not liable for any and all damage that may result to a property owner from the construction of a sewer, but it is liable for its negligent or unskillful performance of the work.</p> <p>When a municipal corporation employs a contractor to build a sewer, under the supervision and control of a municipal official, the city is liable for any negligence of the contractor in the performance of the work.</p> <p>The right of an owner of land to lateral support may be asserted against a municipality making excavations in the adjoining street.</p> <p>The duty of the owner of a house to shore or prop his land after notice when excavations are made adjoining it, does not require him to guard against the negligence of the other party in making the excavations.</p> <p>In an action where the question is whether the defendant was guilty of negligence in the construction of a trench and sewer, expert witnesses cannot be allowed-to give their opinion that, from the facts stated in the questions to them, the defendants had not exercised due care. That was a matter for the détermination of the jury.</p> <p>In an action for injury to a house, evidence that certain re- ’ pairs would put the house in as good a condition as it was before the injury is competent; as is also evidence concerning the effect on the value of the house of putting iron anchors or braces in it.</p> <p>When a certain document has been admitted in evidence, a party is entitled to read to the jury certain parts of it which he deems material.</p> <p>In an action to recover damages caused to plaintiff’s house by the construction of a trench and sewer alongside of it. a witness may be asked how long the trench remained open and why the sewer was constructed at that particular point.</p> <p>When the record on appeal is so confused by a colloquy between the trial Court and counsel that this Court cannot determine the point to which an exception relates, it must be held that there was no reversible error in the ruling.</p> <p>A witness qualified as an expert in digging sewer trenches may be asked what effect the standing .of rain water in the trench would have on the lagging, and he may also be asked whether a certain sewer should have been built in sections or opened for its entire length. ■</p> <p>When the question is whether a sewer was negligently constructed or not, a witness cannot give his opinion that it ought to have been made on the opposite side of the alley, for negligence in the location of the sewer is as much a question for the jury as whether there was negligence in the details of its construction.</p> <p>When part of the negligence charged against the defendant is that a water pipe crossing a sewer trench was broken, a witness cannot be asked, “Do you know what causes a breakage in a case of that sort.” The question is too broad and vague.</p> <p>ISTor can the witness be asked, “Is there any ordinary method commonly adopted to prevent this breakage, which by W.’s testimony was shown not to have been done.” The first part of this question is proper, but there is no evidence to support the assumption in the latter part.</p> <p>In an action charging the negligent construction of a sewer which injured plaintiff’s house, a witness may be asked, “What would be the effect of water standing in a trench of eight feet depth upon the lagging, and also upon the foundation of the adjoining house.”</p> <p>A question is improper which assumes without proof that the defendant omitted to do something which ought to have been done.</p> <p>In an action charging that defendants’ negligence caused the injury complained of, the case should be submitted to the jury if the plaintiff’s evidence be such that the fact of negligence can be fairly and rationally inferred from it. That evidence need not point unavoidably and unerringly to defendants’ negligence.</p>

Appeal' from the Superior Court of Baltimore City (Shakp, J.), where there was a judgment on verdict for the plaintiff for $1,200.

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

<p>Jurisdiction of Court of Equity to Decree Release of Lien on Preferred Stock—Representation in Equity of Parties Having a Common Interest—Vendor and Purchaser— Costs—Adjustment of Interest and Taxes.</p> <p>The mere circumstance that the instrument creating a lien on corporate property makes no provision for 'releasing it does not prevent a Court of Equity from releasing it when it is shown to he to the advantage of the parties concerned and when precautions are taken to safeguard their rights.</p> <p>To the general rule that all persons interested must be made parties to a proceeding in equity by which their rights may be affected, there is an exception in the case when the parties interested in certain property are numerous, and it is impossible to bring them all before the Court. In such case, if a sufficient number of the persons interested are brought into Court, so as to be fairly representative of the large class having common interest, the decree made will bind all of them.</p> <p>Code, Art. 23, sec. 408, formerly provided that corporations having power to issue bonds secured by a mortgage should have the power to issue preferred stock, which should constitute a lien on the franchises and property of the corporation, and have priority over any subsequently created mortgage or other encumbrance. No provision was made in the statute for the release of the lien of the stock on the property of the corporation. After a corporation had issued several thousand shares of prefered stock, which were held by several hundred persons, it contracted to sell a lot of ground which it owned at the time of the issue of the stock, and which was subject to the statutory lien. The purchaser objected to the title. Upon a bill for specific performance against him and some of the preferred stockholders, to which bill the trustee under a prior mortgage of the property of the corporation was a co-plaintiff, held, that the lien of the preferred stockholders may be discharged as to any particular part of the corporate property under a decree of a Court of Equity passed in a proceeding in which fairly selected representatives of that class are made parties, and in which the reasonable necessity for a sale is alleged and proved after suitable provision is made for the protection of the lienors with reference to the appropriation of the proceeds.</p> <p>When a suit in equity and a decree is necessary to make good the title to property sold by a corporation in order to discharge the lien on it of preferred stock, and the corporation files a bill for specific performance of the contract to buy it, the purchaser should uot be subjected to the costs of the case below or on appeal, and interest on the purchase money and taxes on the property should be adjusted as of the date of the decree in this Court.</p>

<p>Appeal from the Circuit Court of Baltimore City (Niles J.).</p>

<p>Legacy Payable if Legatee Arrives at Certain Age Contingent, and Defeated by His Prior Death.</p> <p>A testator devised his real estate to his wife for life and at her death to his two sons. He then charged the land devised to the sons with the payments to be made by them as follows: The said sons shall each pay at the death of the life tenant to the testator’s daughter Sallie the interest on $1,000 annually during her life. At the death of Sallie, the sons shall each pay the said interest to Sallie’s son Walter until he has reached the age of twenty-four, “and upon the said Walter arriving at the age of twenty-four years, provided he arrives at that age after the death of his said mother, or if the said Walter is twenty-four years of age at the death of his mother, then each of my said two sons shall pay the sum of $1,000 to the said Walter.” Sallie and Walter both died before the life tenant, and Walter at the time of his death was twenty-one years old. Hpon a bill by the heirs at law of Walter to enforce payment of the legacy to him as a charge on the land, held, that the legacy did not vest upon the death of the testator, but the same was contingent upon Walter’s living until the age of twenty-four, and since he died at the age of twenty-one, the plaintiffs as his heirs are not entitled to the legacy.</p>

<p>Grant of Land Binding on Centre of Existing Private Road— When Grantee Takes Subject to Easement of Way—Closing the Road.</p> <p>The grantee of land described as including one-half of an existing private road, then in open use by other parties, acquires only a fee in the road subject to the easement of way.</p> <p>When the owner of land which is crossed by a private way of his own, conveys a lot described as extending to the centre of the road, the grantee takes a fee to the centre, and the grantor owns the other half in fee, while the grantee by implication takes a right of way over the half retained by the grantor, subject to a like right in the latter over the half conveyed.</p> <p>Defendant, the owner of a tract of land, conveyed a portion of it to one F., and there was then made a private roadway leading through the land retained by the grantor to the part conveyed to F. While this roadway was not the only means of access to F.’s tract, it was reasonably necessary for the same, and was an open and visible easement. Afterwards the defendant grantor conveyed to the plaintiff lots of ground described as including one-half of said roadway. Plaintiff built a fence, across one-half of the road as described in his deed, which was removed by the defendant. Upon a bill asking for an injunction to restrain such interference, held, that as between the defendant and F. the latter was entitled to an easement in the road, and that the title acquired by the plaintiff was subject to this visible easement, and the plaintiff is therefore not authorized to close the road, but owns the fee in it subject to the right of way over it possessed by P. and by the abutting owners on the opposite side of the roadway.</p> <p>Held, further, that no question of dedication is involved in the ease.</p>

<p> Invalidity of Will Subscribed by Only One Witness. </p> <p>While a man was lying ill on a bed in a hospital,- and just before he was taken to the operating room, he asked the attending physician for a piece of paper and pencil, and wrote a short testamentary disposition of his property. He handed the paper to the physician and asked him to sign it, which was done. Then he gave the paper to the petitioner, who was at hand, in the presence of other persons, who knew that the paper was a will. The man died after the operation. Reid, that this paper camiot be admitted to probate as a will, since Code, Art. 93, sec. 317, expressly provides that unless a will be attested and subscribed in the presence of the testator by two or more credible witnesses, it shall be utterly void and of none effect.</p>

<p>Appeal from the Circuit Court for Washington Count} (Keedy, J.).</p> <p>The cause was argued before Boyd, C. L, Briscoe, Peaece, Schmitcker, Burke, Thomas, Pattisoy and ITryer, JJ. ■</p>

<p> Mechanics’ Lien—Contract for Work on a Building Held to Have Been Made With the Owner of the Building and Not With the General Gontractor. </p> <p>Opon a bill to enforce a mechanics’ lien against a building for putting on it a tile roof, the claimant alleged that the owner and architect had ordered the work from him and promised to pay for it, while the owner of the building alleged that it. had been ordered by the contractor, and that the contract for the roof had been made by the lien claimant with the contractor, and that since the claimant had not given to the owner the notice of his intention to claim the lien required by statute, the same was not enforceable against the building. Held, upon an examination of the evidence, that the claimant had made the contract for doing the work directly with the owner and not with the general contractor, and that consequently his claim is enforceable.</p>

<p>Increase in Value of Property Held in Trust for Life Tenant With Remainder Over—Extra Dividend on Shares of Stock Owned T>y Life Tenant Derived from Sale of Property of Corporation—What is Lncome as Between Life Tenant and Remainderman— Construction of Will Creating Trust Estate for Life.</p> <p>When a trustee is directed to pay the “interest or earnings” of the estate to a life tenant with remainder over of the principal, the life tenant is entitled only to the income, and an enhancement in the value of the estate is not a part of the interest or earnings.</p> <p>The direction in a will that a part of the testator’s estate, amounting to a designated sum, shall he set aside and held in trust for life tenants, does not mean that the life tenants are entitled to any increase subsequently accruing in the value of the trust estate over and above the designated amount.</p> <p>When a life tenant is entitled to the interest and income on shares of stock in a corporation, and that corporation sells a part of the property in which its capital is invested and distributes the proceeds of the sale as a cash dividend, such dividend is a part of the corpus of the trust estate and is not income to which the life tenant is entitled.</p> <p>The exception to this rule is confined to cases in which the earnings of a corporation involve the conversion of its capital, as when the chief business of a corporation is to buy and sell land in which its capital is invested.</p> <p>A testator directed that $700,000 of his estate should be held by trustees who should invest and reinvest the same and pay the interest or earnings thereof to his seven children for life with remainder to their respective heirs. One part of the property constituting the trust estate was an undivided interest in a tract of timber land in British Columbia, which cost the testator and the trustees about $30,000. Afterwards this interest in the land was sold for $85,000. Held, that this increase in the value of the trust estate belongs to the principal, and not to the life tenant.</p> <p>Another investment held by the said trustees was a number of shares of stock in a Canadian Lumber Company, upon which the payments made by the testator and the trustees after his death out of the corpus, amounted to $196,000. The Lumber Company sold 52,000 acres of its land, which it had acquired as part of a larger tract made as an investment of its capital. The amount paid as a cash dividend to the trustees arising from this sale was $676,000. The company had the power under its charter to buy and sell land, but its business had been confined to operating saw mills and the lumber business generally, and it had not engaged in buying and selling land. After the sale of the 52,000 acres, the Lumber Company retained land amounting in value to five times its capital stock. Held, that this cash dividend so paid to the trustees is not income or earnings of. ■the investment, but belongs to the corpus of the estate as a result of an increase in its value.</p>

<p>Time Not of the Essence of Contract for the Sale of Land— Right to Rescind!—Construction of Contract by Act of the Parties.</p> <p>In a contract for the sale of land time is not generally of the essence, so as to authorize the vendor to rescind the contract for a failure of the purchaser to make payment at the time fixed.</p> <p>When a contract for the sale of land provides that the balance of the purchase money shall be paid either within ninety days from date, or upon delivery of a deed conveying the land, free of encumbrances, the vendor is not authorized to rescind the contract, about a month aftér the expiration of the ninety days, for non-payment of the balance of the purchase money, especially where the vendor was not previously able to make a conveyance free from encumbrances, and when, after an attempted rescission, the purchaser had tendered the full amount of the purchase money.</p> <p>An allegation that the execution of a contract had been obtained by means of false representations made by the purchaser, held not to be supported by the evidence.</p> <p>When the language of a contract is uncertain the acts and conduct of the parties may be considered to discover the meaning of the language used, but the parties cannot testify as to their understanding or interpretation of the contract.</p>

<p> Gift Inter Vivos to Unincorporated Association for Charitable Purposes. </p> <p>An executed transfer of shares of stock, made by way of gift inter vivos, to an unincorporated association is valid, although the association is composed of an uncertain and fluctuating membership, who do not have a common interest in ,the property.</p> <p>The owner of shares of stock in a corporation caused the same to be transferred on the books of the company and a new certificate issued in the name of Mrs. TJ., “treasurer of the Baltimore branch of the Woman’s Poreign Missionary Society, or any other future treasurer of said branch.” The donor before making delivery of the certificate to the treasurer wrote on it as follows: “I have transferred and given to Mrs. TJ., the treasurer of the Baltimore Branch of the Woman’s Poreign Missionary Society, all my interest in the within certificate of seventy shares of stock, only reserving the payment of the dividends, to be paid by Mrs. TJ. or any succeeding treasurer of said Branch to Mrs. M. during the term of her natural life, after her decease the stock to he kept and held by said treasurer in trust and dividends all devoted to the Madison Avenue Auxiliary Branch of said society.” Both the Baltimore branch and the auxiliary here mentioned are voluntary unincorporated associations which send the money they collect to the Woman’s Foreign Mis- ' sionary Society, which is incorporated. After the death of the life tenant the shares of stock were claimed by the administrator of the deceased donor. Held, that the gift of the shares had been consummated; that the donee had capacity to accept the same; that, as there was no intention to create a trust, the Rule against Perpetuties was not violated, and that consequently the gift is valid.</p>

<p>Appeal from Court of Common Pleas (Heuisler, L).</p>

). Plaintiff's First Prayer.—If the jury find' from the evidence that the plaintiff shipped the carload of lumber mentioned in the evidence in this case from Mechum’s River,.