Volume 134 — Maryland Reports

(DAWKINS, J.) The facts are stated in the opinion of the Court.

<p>Appeal from the Superior Court of Baltimore City. ( Dawkins, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court No. 2 of Baltimore City. (Ambler, J,)</p> <p>The facts axe stated in the opinion of the Court.</p>

(Dawkins, J.) The facts are stated in the opinion of the Court.

<p>Agency: proof of—. Common carriers: shipments; rights of consignees.</p> <p>An agency may be implied where one person by his acts holds another as agent, and thereby invests him with apparent authority as agent.</p> <p>The authority of an agent may be inferred from facts and circumstances, and from the permission and acceptance of his services.</p> <p>If a shipper delivers his property to a carrier without special instructions as to its ownership, the consignee becomes immediately entitled to the property and may lawfully demand the same.</p>

<p> Negligence: delivering icej injury to plaintiff with ice tongs. </p> <p>The employee of an ice company was serving ont ice for purchasers from a platform; a purchaser had a small wagon against the platform, and was standing hack some' four or five feet away; the employee was loading ice on the wagon with a pair of tongs, and on lowering the ice and raising the tongs he injured the plaintiff’s eye; held, that in view of the facts, a prayer taking the case away from the jury was improper,</p>

<p> Mandamus: to enforce public duty. Police powers: may not contravene general law. Ordinances: validity j considered by what might be done under them. Ordinance permitting baseball. Sunday laws. </p> <p>Private persons may move for a mandamus to enforce a public duty due to the government as such, without the intervention of a government law officer. •</p> <p>The broad and comprehensive police powers conferred upon the City of Baltimore must not directly nor indirectly contravene the general law.</p> <p>In passing upon the validity of ordinances, courts are to be controlled by what may be done under their authority, and not merely by what has been done.</p> <p>• Ordinance No. 353 of the Mayor and City Council of Baltimore, passed on the 25th day of March, 1918, would permit the playing of baseball and other games on Sunday, by professionals or others hired for the purpose, and whose occupation and employment is the playing of such games, and is in contravention of Section 436 of Article 27 of the Code, prohibiting work and bodily labor on Sunday, and is void.</p> <p>Under the power conferred upon the Park Board of Baltimore City by the Charter, they have no authority to pass rules or regulations contrary to the statutory law of the State. pp. 60-61</p>

<p>Fire Insurance: contract of sale by insured; effect on policy-</p> <p>Where a contract of sale is executed, a vendee is considered in equity as the real owner of the land; though the vendor may still retain the title, he holds only as trustee for the vendee, to whom all the beneficial interests passes with a lien on the estate, as security for the unpaid purchase money.</p> <p>A contract of sale avoids a policy of insurance that contains a provision declaring it to be void, if the interest of the insured is other than an unconditional and sole ownership.</p>

<p>Promissory notes: Speedy Judgment Act; denial of signature in affidavit to plea; puts burden on plaintiff to prove signature. Consideration: not to resist divorce; not good—.</p> <p>Where a suit on a promissory note is brought under the Baltimore Speedy Judgment Act (Section 312 of Chapter 123 of the Acts of 1898), a denial of the defendant’s signature in the affidavit to his plea is a sufficient denial of the note, although the plea itself contains no such denial.</p> <p>In a suit upon a promissory note the burden of proof is upon the plaintiff, and a prayer to the effect that the burden is on the defendant to prove that he did not sign the note is properly refused.</p> <p>A plaintiff is not entitled to recover on a promisory note unless it was signed by the defendant or by someone authorized to sign for him.</p> <p>An agreement not to defend a suit for divorce is not a valid consideration for a contract.</p> <p>Where a proper foundation has been laid, it is competent to investigate the reliability of the witness by examining witnesses competent to testify as to his general reputation for truth and veracity.</p> <p>Where evidence is admitted subject to exception, if upon the conclusion of the case the party objecting does not think the evidence relevant, he should ask the court to exclude it, if he wishes to avail himself of the original objection.</p>

<p>Promissory notes: conditional indorsement; Code, Section 85 of Article 13.</p> <p>Even prior to the Negotiable Instruments Act (Gode, Section 35 of Article 13), it was competent for a defendant to show by parol that a promissory note on which he was sued, as endorser, had been delivered in escrow, or that it was delivered to be held upon a condition to be performed before the holder’s rights could attach.</p> <p>Where a bank agreed that it would accept and not discount certain notes until it secured certain other stipulated endorsements thereon, it can not excuse its failure to fulfill the condition on the ground that the defendant could not reasonably have expected its performance.</p>

<p>Appeal from the Baltimore City Court. (Heuisler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Baltimore City Court. (Duffy, J.)</p> <p>The facts are stated in. the opinion of the Court.</p>

<p> Frisan labor on public roads: constitutionalj police power; and obligation of contracts. </p> <p>Chapter 308 of the Acts of 1918, providing for the State Board of Prison Control to employ the prisoners in the Maryland Penitentiary for work on roads and in stone quarries, operated by the State Roads Commission, is not unconstitutional and void as impairing the obligation of the contract of the Directors of the Maryland Penitentiary for the employment of prisoners therein by contractors, and the appellants (the contractors) are not entitled to a decree for specific pérformance for that contract to the extent of depriving the State Board of Prison Control of the power and authority vested in said Board by said Act, or to an injunction restrain-* ing said Board from further exercise of power and authority under it.</p> <p>If an Act has a real and substantial relation to the police power, no inquiry as to its unreasonableness can arise, because it is a judgment of the lawmakers and not of the courts which must control.</p> <p>It is the duty of the State, in the exercise of its police power, to provide for the custody and maintenance of convicts as an essential part of the administration of criminal laws enacted for the protection of the public.</p> <p>It is the duty of the State to make all reasonable regulations for the preservation of their health, moral and physical well-being.</p> <p>The State can not, by contract or otherwise, barter away its duty and right to adopt such measures as it may from time to time deem advisable for the promotion of those ends.</p> <p>The interdiction in the United States Constitution against the impairment of the obligation of contracts does not prevent a State, from exercising the police power to protect the lives, health, morals, comfort and general welfare of the people; such power is paramount to any right under contracts between individuals.</p> <p>The power that the State may exercise in this regard is the overruling law of necessity, and is founded upon the maxim, salus populi est suprema lex.</p>

<p>Taxation: savings banks; mortgages owned by—. Statutes: construction; long usage. Section 187 of Article 81 of Code; Chapter 508 of Acts of 1916.</p> <p>The stockholders of the Westminster Savings Bank were taxed upon their shares of the bank stock; it was held, that the mortgages and the judgments held by the bank were not taxable under Section 187 of Article 81 of the Code (Vol. 4), nor under Chapter 508 of the Acts of 1916.</p> <p>The construction of tax laws that has been long and universally adopted by officials throughout the State ought not to be disregarded, except on the most imperious grounds.</p>

<p>Workmens Compensation Act: “casual employment”; exempt what is—. Driver for packer, hired by season, when needed.</p> <p>The question whether an employment is casual, within the meaning of the Workmen’s Compensation Act, must he determined with principal reference to the scope and purpose of the hiring, rather than with sole regard to the duration and regularity of the service. ■ p. 135</p> <p>One who is employed all of a packing season to drive for the packer whenever he is needed is not engaged in a casual employment merely, within the meaning of the exception in the Workmen’s Compensation Act, and if injured while in such employment is entitled to compensation thereunder. p. 136</p>

<p> Natural gas: from, another State; when taxable; interstate commerce; original paclcage. </p> <p>When natural gas from another State leaves the main line where it is separated from the bulk of the gas on such lines and forced into intermediate lines and pipes of the individual consumers where it can not return to the main line and where it remains until used, it constitutes such a break of the “original package” as to remove it from interstate commerce and to subject it to State legislative regulation by the Public Service Commission of the State.</p> <p>The general rule is that an article imported from another State is not protected by the commerce clause of the Constitution from the interference of State laws when the original package has been sold by the importer or broken by him, or otherwise become mixed with the other property in the State.</p>

<p>Appeal from Circuit Court for Somerset County. (Duer, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Negligence: steamboats unloading freight; injuries to persons on wharf; implied invitation to board boat; not mere licensees or trespassers. Doctrine of res ipsa loquitur. </p> <p>A steamboat company was unloading heavy trucks from a ■steamer at the company’s wharf; one heavily loaded truck came down the incline with such an impetus that the men in charge lost control of it, and it ran across the wharf, unhinging a gate and injuring the plaintiff, who was standing there awaiting the discharge of the passengers: held, that the facts presented a case which should have been left to the jury to find whether or not the accident was caused by the negligence of the defendant or of its servants.</p> <p>Where a steamboat company permits, persons to come aboard for the purpose of buying candy or cigars, or for taking meals while the boat lay at the wharf, it is such an implied invitation to the people to come aboard that those who go upon the wharf to board the boat for that purpose are not to be regarded as trespassers or as mere licensees.</p>

<p> Divorce: custody of children; jurisdiction of court; may revise decree as to children, even after term; children's welfare. </p> <p>Under section 38 of Article 16 of the Code, the court that decrees a divorce may revise its decree relating to the disposition of the children, even though the application be made after the term at which the decree was passed.</p> <p>Tn such cases, the primary concern is to make such an award of the child’s custody as will best protect its welfare.</p> <p>Where the custody of a female child is sought by the mother after a divorce, granted because of her adultery, the evidence should be very clear as to the propriety of removing the child from the custody of the father, to whom it had been judicially awarded, and committing her to the mother.</p>

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

<p> Releases of debts: statute of 18th Elizabeth; solvency of grantor; question for jury; insolvency not to be assumed. Contracts for labor: reference to plans, made part of contract. Exceptions: rulings on evidence and prayers; not to be combined in one exception. </p> <p>In a suit between the garnishee of a subcontractor and a general contractor, where the question arises whether certain tunnels were covered by the contract with the subcontractor in his employment to do “landscape work and grading,” the jury may be shown the sheets and plans referred to in the contract to see if the tunnels were marked upon them; but the better and proper plan is to have the architect testify who had prepared the plans and who could explain them.</p> <p>The fact that an interrogatory put to witness misstated the contents of a'letter that was in evidence, presents no reversible error where the jury had the letter itself before them and no hurt could have been done.</p> <p>Where the “tunnels and fanroom” were not on the plans and sheets, for work that was furnished the contractor and made part of his contract for landscape work and grading, digging-tunnels is not to be taken as “other kind of grading.”</p> <p>An exception should not embrace a ruling on a motion to strike out evidence and also a ruling on a prayer.</p> <p>But in such a case the ruling on the prayer may sometimes still he considered.</p> <p>A voluntary conveyance is prima, facie invalid as against existing creditors, without regard to the actual intent of the grantor, when he has not sufficient means to pay his debts.</p> <p>In such a case the burden of proof is on the party claiming under such an instrument to show that the debtor had property sufficient to pay his debts.</p> <p>p. 194</p> <p>"Whether or not the debtor had at the time sufficient such property is a question of fact to be submitted to the jury, and the fact of his then insolvency should not be assumed in a prayer.</p> <p>Where a release has its origin in fraud or what the law deems to be a fraud, the fact that it is under seal is immaterial.</p> <p>The Statute of 13th Elizabeth applies to releases of debts.</p> <p>But a release that is bona fide and is a fair settlement of the controversy between the parties, can not be said to be a voluntary conveyance so as to be void against creditors, in the absence of fraudulent, intent.</p>

<p>Appeal from the Circuit Court for Montgomery County. (Peter and Worthington, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

(Boyd, J.) The facts are stated in the opinion of the Court.

<p>Appeal from the Circuit Court for Worcester County. In Equity. (Bailey, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Superior Court of Baltimore City. (Dawkins, J.)</p> <p>The facts are stated in the opinion of the Court.</p> <p>The following is the declaration which the Court directed to be included in the report of the case:</p> <p>Declaration.</p> <p>Rezin G. Hobbs, plaintiff, by William W. Varney, Ms attorney, sues the Patapsco Loan Company of Baltimore City, a body corporate, and Charles W. Hart, defendants:</p> <p>For that before and at the time of the happening of the wrongs and grievances hereinafter complained of, the plaintiff and his wife, Mignonette K. Hobbs, were in lawful possession and occupancy of premises in the dwelling house known as Ho. 1115 West Mulberry street, in the City of Baltimore. That heretofore, to wit, on or about the second day of February, in the year nineteen hundred and fifteen, at the premises aforesaid, the defendant, the Patapsco Loan Company of Baltimore City, did by means of its agent and servant, acting in the scope of his employment, and the defendant, the said Charles W. Hart, did on said day and at said place, without permission and with force and arms break into and did forcibly and violently enter, and cause and procure to be entered, the plaintiff’s premises then and there situate, and did then and there assault the plaintiff’s wife, the said Mignonette K. Hobbs, she, the plaintiff’s said wife, being then and there ill in bed. That by reason of such acts of the defendants and each of them, and said agent and servant so acting within the scope of his employment, the said Mignonette K. Hobbs was caused to suffer a serious and permanent impairment of and injury to her nervous system, has been caused to suffer great physical pain and mental anxiety, and was rendered so ill as to be unable to attend to her ordinary household duties, or to render any aid or assistance to the plaintiff, her husband, as theretofore; whereby the plaintiff has lost the benefit and advantage of the services and society of his wife, the said Mignonette Ed Hobbs, has been caused to expend large sums of money for her medical care, attention and services, and has been otherwise injured and damaged.</p> <p> Second Count. </p> <p>And for a second count the plaintiff says:</p> <p>For that, before and at the time of the happening of the wrongs and grievances hereinafter complained of, the plaintiff and his wife, Mignonette K. Hobbs, were in lawful possession, and occupancy of premises in the dwelling house known as Humber 1115 West Mulberry street, in Baltimore City; that heretofore, to wit, on or about the second day of February, in the year nineteen hundred and fifteen, at the premises aforesaid, the defendant, the Patapsco Loan Company of Baltimore City, did by means of its agent and servant acting within the scope of his employment, and the defendant, the said Charles W. Hart, did on said day and at said place, without permission and with force and arms break into and did forcibly and violently enter, and cause and procure to be entered, the plaintiff’s premises then and there situate, the plaintiff’s wife, the said Mignonette K. Hobbs, being then and there ill in bed, and the said defendant and said agent and servant so acting within the scope of his employment, did then and there create such violent noise and commotion, and did by his action so frighten the plaintiff’s wife, the said Mignonette K. Hobbs, by such conduct of said defendant, agent and servant, that she thereby suffered a serious impairment of and injury to her nervous system, has been caused to suffer great ijhysical pain and mental anxiety, and was rendered so ill as to he unable to attend to her ordinary household duties, or to render any aid or assistance to the plaintiff, her husband, as theretofore, whereby the plaintiff has lost the benefit and advantage of the services and society of the said Mignonette K. Hobbs, his wife, has been caused to expend large sums of money for medical care, attention and service, and is 'otherwise injured and damaged.</p> <p> Third Count. </p> <p>And for a third count the plaintiff says:</p> <p>For that heretofore, to wit, on or about the second day of February, 1915, the plaintiff’s wife, Mignonette K. Hobbs, was ill in bed in the room lawfully occupied by her in the premises known as 1115 West Mulberry street, in Baltimore City, recovering from a recent serious operation; that the defendant, the Patapsco Loan Company, through its agent and servant, acting within the scope of his employment, and the said Charles W. Hart, individually, did, on said date, whilst the plaintiff’s wife was ill as aforesaid, enter said room, against the protest of the plaintiff’s wife, her agents and servants in the premises; that then and there it became and was the duty of the defendant’s agent and servant and the said Charles W. Hart individually, in the premises, whilst in said room of the plaintiff’s wife, and being aware of her condition, or should have been aware of her condition by the exercise of ordinary care and caution, to conduct himself in a careful, orderly and proper manner so as not to cause injury to the plaintiff’s said wife; that said agent and servant of the defendant, and said Charles W. Hart, individually, in neglect and default of said duty in the premises, did not conduct himself in a careful, orderly and proper manner, but did by his unwarranted and threatening words and actions so terrify and shock the plaintiff’s said wife, the said Mignonette K. Hobbs, in her then weakened condition, that she was-caused to suffer great physical pain and mental anguish, has suffered a serious and permanent impairment of her health, and was rendered so ill as to be unable to attend to her ordinary household duties, or to render any aid or assistance to the plaintiff, her husband, as theretofore; whereby the plaintiff has lost the benefit and advantage of the services and society of his wife, the said Rezin G. Hobbs, has been caused to expend large sums of money for her medical care, attention and services, and has been otherwise injured and damaged.</p> <p>And the plaintiff says that the injuries to his said wife aforesaid were directly caused by the negligence and want of care of the defendants, and each of them, and their agent and servant in the premises, and without negligence or want of care upon the part of the plaintiff’s said wife directly thereunto contributing, wherefor this suit is brought.</p>

<p>Appeal from, the Circuit Court for Wicomico County. (Pattison, C. J., Bailey and Duer, JJ.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>. Marriage; wills with, provisions in restraint of—; social equality.</p> <p>A condition in a will or deed which operates in only a partial restraint of marriage is valid and effective, unless it unreasonably limits the right of the beneficiary to enter into such a relationship.</p> <p>.The validity of conditions in restraint of marriage with a particular person is sustained by the courts.</p> <p>The fact that such a restriction may interfere with an existing engagement presents no exception to the general rule.</p> <p>Where the termination of a trust and the vesting of an absolute estate in a devisee are made to depend on her marrying someone who is her social equal, the provision is not capable of enforcement, because of the absence of any definite standard of social equality.</p>

<p>Appeal from the Circuit Court of Baltimore City. (Sopjeii, C. J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Subscriptions to. stock: conditionalj return, on failure to perform—. Bes adjudicata: parties not bound.</p> <p>Where subscriptions to stock were made conditionally and for a specific purpose (erecting a building), they can not be enforced if the purpose was never carried out. ■</p> <p>A judgment to operate as an estoppel must be upon the same subject-matter and between the same parties; but the term “parties” in this sense is not restricted to those who appear as such upon the record; it includes those who are directly interested in the subject-matter of the suit, who knew of its pendency and had the right to make defense or to control the proceedings and appeal from the judgment.</p> <p>Persons should not be bound by decisions to which they were not parties, either actually or constructively.</p>

<p>.Alterations in instruments: question for jury. Agents: evidence of—; proof of agencyj authority to correct dates. Contracts: providing for notice; waiver; effect of—. Declarations: amendments; proceeding with trial; discretion of court. Evidence: exclusion; subsequent admission. Prayers: effect of court’s instruction.</p> <p>Where the date of an instrument has not been stricken out, but a different date was simply written over it in load pencil, the court is not warranted in refusing to admit the instrument in evidence, but the question whether the instrument has been altered should be submitted to the jury.</p> <p>The introduction of evidence of an act of an alleged agent,, without first proving his agency, does not warrant the reversal of a judgment where it appears from the record that the agency was subsequently proved.</p> <p>If there is a mistake in the date of a written contract, the promisee has the right to correct the date with the consent of the promissor’s agent.</p> <p>The question whether a party to a contract has consented to-an alteration by the other party is to be determined by the jury..</p> <p>Where a contract provides for notice in writing by one of the parties, the right to receive such notice may be waived by the conduct of the other party.</p> <p>Proof of a waiver of notice obviates the necessity of complying with it.</p> <p>The question whether the trial judge should permit a declaration to be amended and should proceed with the trial, is in the discretion of the trial judge, and will not be reviewed in the absence of a great abuse of discretion.</p> <p>Where, in addition to prayers granted at the defendant’s request, the trial judge of his own accord instructs the jury, it is not improper to mark, such instruction “Granted as court’s own instruction,” and to head it “Court’s Instruction.'”</p> <p>When the court gives, an instruction, whether framed by itself or the attorneys, it is the duty of the jury to follow it, and if the court errs the remedy is by appeal.</p>

<p> Stocks: contract to repurchase at double par value; consideration; evidence; nature of corporation; time and place of contract; proof of offer to public. Prayers: court’s instructions. </p> <p>In an action on a contract to repurchase corporate stock at double its par value it is proper to admit evidence as to the nature of the corporation, as reflecting upon the reasons which might induce those selling the stock to agree to such terms.</p> <p>Where the defendant denies the delivery of the contract sued on, it is proper to permit the plaintiff to tell the circumstances under which he claims to have received the contract.</p> <p>Where, in an action on a contract for the repurchase of corporate stock at double the par value thereof, the defendant denied the delivery of the contract and characterized it as “foolish,” it is proper to admit evidence of a statement issued by the defendant to the public offering to repurchase preferred stock at a premium and common stock at par.</p> <p>Where it appears that the plaintiff bought from the defendant preferred stock and common stock, and that one of the terms of the purchase was that the defendant should repurchase the common stock at double the par value thereof, the defendant’s agreement to repurchase at such price was not without consideration.</p>

<p>Appeal from the Circuit Court for Baltimore. City. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Criminal insane: committed to State hospitals; not as punishment, but for treatment, under Section 1 of Article 59 of the Code; liability of estate.</p> <p>When a person accused of crime in Baltimore City is found by the jury “Hot guilty because of insanity,” and is committed to a State hospital for the insane, it must not he considered as a punishment, hut it is as if he has been adjudged insane under Section 1 of Article 59 of the Code.</p> <p>And where a committee of such person has been appointed by the court, an order to the committee to pay to Baltimore City the sum provided for by Section 45 of Article 59 for his support and maintenance in that institution is proper.</p>

<p>Appeal from the Criminal Court of Baltimore City. (Stanton, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Circuit Court of Baltimore City. (Soper, C. J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Baltimore City Court. (Bond, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Divorce: alimony; review on appeal; destitute wife. </p> <p>While the Court of Appeals has the right to review the amount of alimony allowed in divorce proceedings, yet unless thoroughly satisfied that there has been error, it should not disturb the large discretion vested in the chancellor.</p> <p>The rule is almost universal to allow a destitute wife who has been abandoned, or who is living apart from her husband, temporary alimony and the means of prosecuting or defending a suit for divorce, and this without any inquiry into the merits.</p>

<p>Collateral inheritance tax: Section 120 of Article 81 of the Code; lands in other States; not taxable; principle of conversion, not applied to proceeds of sale under will.</p> <p>Under Section 120 of Article 81 of the Code, a resident’s real estate that is located in a foreign jurisdiction is n,ot taxable under the collateral inheritance law.</p> <p>Where such real estate is sold under the provisions of a will, the principle of equitable conversion is not applied for the purpose of making the proceeds taxable.</p>

<p>Fraternal societies: appeals to courtsj remedies of own constitution must he first exhausted. Appeals: remanding causes without affirmance or reversal; Section 38 of Article 5 of the Code.</p> <p>A member of a beneficial association can not, in the absence of fraud, etc., resort to the courts for relief when there is a rule of the society which requires him first to exhaust the remedies furnished by the association.</p> <p>Where the substantial merits of a case will not be determined either by affirming or reversing an order appealed from, the Court of Appeals may, under Section 38 of Article 5 of the Code, remand the cause for further proceedings, without any affirmance or reversal.</p>

(Dawkins, J.) The following are the prayers directed by the Court in its opinion to be set out in the report of the ease: Plaintiffs 1st Prayer.—If the jury find that the written contract dated February 5th, 19 IT, offered in evidence, was executed by the parties thereto and delivered to the plaintiff, and that the sale evidenced by said contract was made by the plaintiff on the joint credit of the defendants, and that said contract was subsequently modified by the parties…

<p>Appeal from the Baltimore City Court. (Duffy, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Stockbrokers’ agreements to aid in floating stock: breachj damages; duty of plaintiffffs to minimize. Prayers. Contracts: vagueness; when not to be enforced. </p> <p>Courts are reluctant to reject an agreement regularly and fairly made as unintelligible or insensible; agreements will be sustained if the meaning of the parties can be ascertained, either by express terms or by fair implication.</p> <p>But if an agreement be so vague and indefinite that it is not possible to collect from it the full intention of the parties, it is void; for neither the court nor the jury can make an agreement for the parties.</p> <p>A firm of bankers and brokers agreed with the plaintiff corporation for a substantial financial consideration to use all their facilities to float and effect the sale of certain shares of the preferred stock of the plaintiff coporation; the defendant assumed the obligation, upon the condition, however, that the plaintiff corporation should cause its charter to be amended in various particulars, and also that it should acquire ownership of certain domestic and foreign letters patent, which conditions the plaintiff corporation complied with; but the defendants refused and failed to carry out their contract; held, that the defendants were liable to the plaintiff corporation for all damages suffered by it that were the direct and natural result of the unjustifiable refusal and failure of the defendants to perform their agreement.</p> <p>To enable the plaintiff to recover more than nominal damages for the breach of such a contract, it would be necessary to show that the defendants could have sold the stock had they made a reasonable effort to do so; if it had made such effort and failed, there could have been no recovery.</p> <p>A prayer is defective which fails to submit such fact to the finding of the jury.</p> <p>A loss sustained by the plaintiff corporation by the lapsing of the patent rights which it had acquired, caused by its inability to develop or preserve the patents by the payment of certain charges that were required to be paid from time to time to preserve them, can not be recovered, because such loss or damage was not a natural and direct result of the alleged breach,</p> <p>Upon a breach of the contract, it was the duty of the plaintiff corporation to make all reasonable efforts to minimize its loss, and to find another who would sell the stock or raise the money on terms equally as advantageous as those contained in the agreement with the defendants.</p> <p>If, however, after such efforts the plaintiff was compelled to pay more for obtaining said money or selling said stock than it would have cost had the defendant company complied with its agreement, the true measure of damages would have been the difference between the actual cost to it and what it would have cost by the defendants’ agreement.</p> <p>If the amendment to the plaintiff corporation’s charter, obtained at the instance of the defendant corporation, were not available under the only method by which money could be obtained, then evidence of the cost of such amendments might, under some circumstances, be offered in evidence to show the actual cost to which the plaintiff corporation was put to in obtaining the money.</p>

<p>Appeal from the Superior Court of Baltimore City. •(Hedisder, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p> The Donovwn trust: continuance and administration of—; accounts. </p> <p>The Donovan trust, in favor of the African Colonization Society, should he continued at least so long as the objects and purposes of it exist, or so long as it can be executed in substantial conformity with the provisions of the deed now recognized and administered under the supervision of the court; but when its objects and purposes have ceased, or when the trust can no longer be executed, pursuant to its provisions, a resulting trust in favor of the heirs or devisees of Caroline Donovan will then be recognized.</p> <p>The court rrnder whose jurisdiction the Donovan trust was being administered ordered the trustees to pay to the Colonization Society a sum of money which an audit of the accounts showed to be distributable to the society; on the appeal, the court’s action was affirmed; the trustees declined to make the payment unless the society distinctly agreed to use the money entirely for the purposes set out in the deed of trust; the society claimed the right to appropriate the sum for counsel fees; the court’s order was sustained on appeal, the Court of Appeals holding that:</p> <p>“The execution of the trust was under the supervision of the court, and it was not within the power or province of trustees, without the authority of the court, to impose the condition named, in view of the order previously passed directing it to be paid without such condition. It is, however, within the power of the court, either of its own volition or at the request of the trustees, if they have reason to believe that the moneys paid over by them to the society is not- expended in accordance with the provisions of the trust, to pass such orders as it may deem necessary to assure the proper expenditure of the money pursuant to provisions of the trust.”</p>

<p>Husband and wife: interest of survivor in deceased spouse’s real estate; Chapter 325 of the Acts of 1916; constitutional.</p> <p>Chapter 325 of the Acts of 1916, amending the law as to inheritance (Code, Article 46), is properly described in its title, and complies with the requirements of Section 29 of Article 3 of the Constitution as to the title of statutes.</p> <p>That statute, in giving a surviving widow or husband, as heir, the same share in the real estate within the State belonging to the deceased spouse, at the time of death, though such spouse died testate, which the survivor would take as distributee in the personal property of the decedent so dying testate, operates only upon the property belonging to the person at the time of his or her death, and does not operate to change or divest rights or estates of property already descended or vested; nor does it affect the enjoyment or ownership of property during his or her life, and the Act is constitutional and valid.</p> <p>J. H. K. died, leaving personal property more than sufficient to pay his debts; Chapter 325 of the Acts of 1916 was then in force; the decedent made no provision for his wife, but by his will recognized her right to dower and a distributive share of his estate, but in his will stated that it could be more satisfactorily adjusted at the time of his death; held, that his surviving widow took, as heir, one-third in fee of his land and tenements belonging to him at the time of his death, the same being the interest she took under the statute in his personal property, and that she did not take merely one-third life estate therein.</p>

<p>Appeal from the Orphans’ Court of Baltimore City.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Statutes: constitutionality of—; presumption; duty of courts. Police poiver: extends to general welfare. Trading stamps: Chapter 704 of Acts of 1916; valid exercise of police power. Criminal statutes: parties not within unlawful discrimination cannot raise that objection.</p> <p>When the constitutionality of a statute is in question it is entitled to the benefit of every reasonable presumption in favor of its validity Section 173 of Chapter 704 of the Acts of 1916, requiring a license fee of $1,500.00 of persons, firms, associations or corporations engaged in the business of selling and delivering trading stamps, coupons, tickets or similar devices which are or may be redeemable in merchandise, is a competent exercise of the State’s police power, and is valid.</p> <p>The police power of a State extends not only to the protection of public health, morals and safety, but also to the promotion of the general welfare.</p> <p>An essential right of the police power is to classify the conditions under which the power is applicable.</p> <p>The fact that the statute exempts from the license charge any manufacturer or packer who issues such stamps, etc., in connection with his own products, is not such' an arbitrary discrimination as to affect the validity of the Act.</p> <p>The fact that the statute is not made applicable to such stamps, etc., redeemable in cash, as well as to those redeemable in merchandise, does not render it void.</p> <p>Where a traverser does not belong to either of two classes against which a statute is claimed to be arbitrarily discriminatory and therefore unconstitutional, he can not pertinently raise that objection on an appeal involving the validity of the Act.</p>

<p> Divorce: adultery; mistake of law no excuse. Recrimination: duty of Court, even where defense not formally sel up, if petitioner guilty. </p> <p>A mistake of law can not excuse one charged with adultery. p. 463</p> <p>It is not only the right but the duty of the court to refuse a divorce, although the defense of recrimination is not formally set up, if it appears that the plaintiff is guilty. p. 463</p> <p>The marriage and cohabitation of a husband with another woman before his former marriage was legally dissolved is adulterous, even though such marriage was contracted in the honest belief that the conviction and incarceration of his former wife permitted him to marry without a divorce. pp. 461-462</p>

<p>Appeal from the Baltimore City Court. (Duffy, J.)</p> <p>The facts are stated in the opinion of the Oourt.</p>

<p> Power to executor to sell real estate: right and title to profits pending sale. </p> <p>A power in a will authorizing an executor to sell and dispose of all the real estate of the testator confers upon the executor a naked authority to sell; and, in the interval between the death • o'f the testator and the sale of the real estate under the power, the freehold descends to the heirs at law, who are entitled to the profits until sale actually made.</p>

<p> Collateral inheritance tax. Deed of trust to pay sums to parties, not lineal descendants, after death of grantor. </p> <p>Where a person makes a deed of trust, retaining the net income of property for life and reserving power of revocation and also power of testamentary disposition, and subsequently executes a will giving pecuniary legacies to persons not lineal descendants, it was held, that such legacies fall within the provisions of Section 120 of Article 81 of the Code, and were subject to the collateral inheritance tax.</p> <p>Where there has been a long and unbroken construction given to a statute by the officers charged with its administration, courts ordinarily will assume such construction to be correct, but mere laxity in enforcement or misconception of the intent of the Act by administrative officers will not be allowed to control the correct interpretation of the Act.</p>

<p>Appeal from the Circuit Court for Garrett County. (Boyt>, C. J.).</p>

<p>Usury: effect of section &vof Article 49 of the Code; recovery of principal and legal interest.</p> <p>Section 4 of Article 49 of the Code does not render a loan or contract void in to to for usury, but forfeits the usurious interest and allows the recovery of the principal, with legal interest.</p>

<p> Writs of summons: service of—; several defendants; reading of writ; return; presumption in favor of. </p> <p>It is proper practice for the officer to read the writ of summons to the defendant, but he is not required to “specifically address” his remarks to each defendant when he reads the summons in the presence of two or more.</p> <p>The return to a summons is prima facie evidence of its truth, and will prevail unless overcome by clear evidence, and every presumption will be made in its favor.</p> <p>Where there are two or more defendants, the return should state that all were summoned, but where in such case the return is simply “summoned,” it is understood that all were summoned.</p>

<p> Masonic lodges: arbitrary action; right of members; appeal to courts; when will lie. ■ </p> <p>Where a member of a lodge against whom charges have been preferred to the Grand Lodge is not given reasonable notice of the charges in accordance with the constitution, rules and regulations of said order, and where it appears that no appeal from the action of the Grand Lodge is provided for in the constitution, rules and regulations of said order, a Court of Equity will intervene to declare the action of the Grand Lodge void.</p>

<p> Masonic lodges: arbitrary expulsion; intervention of courts. </p> <p>A Court of Equity will enjoin the, explusion of a member of a lodge against whom charges have been preferred to the Grand Lodge, when no sufficient opportunity was afforded said member to meet and defend said charges, and where it does not appear that any appeal from such action of the Grand Lodge is provided by the constitution and by-laws of the association, or any further remedy or redress furnished by it.</p>

<p>Limitations: Code, Volume 2, Article 57, Section 2. Lunatics: appointment of committee; limitations.</p> <p>The appointment of a committee does not start the running of the Statute of Limitations against the lunatic who was such at the time the right of action accrued.</p> <p>In Article 57. Section 2 of the Code (suspending limitations as to infants and lunatics), the same construction should be given to the word “disability,” whether applied to infant or lunatic.</p>

<p>Appeal from the Baltimore City Court. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Administration: notice; non-residents, out of State. Right of foreign consuls. Foreign treatiess effect of—on courts.</p> <p>A non-resident who is out of the State is not entitled to notice of application for grant of administration.</p> <p>Where letters of administration have been granted on the estate of a decedent who is not a citizen of the United States, and said grant was made prior to the application of a nonresident claiming as the person first entitled thereto, said grant of administration will not be revoked in the absence of fraud or mistake, at the instance of a non-resident claimant.</p> <p>Where a consul of a foreign power claims to be the person first entitled to administration on the estate of a decedent not a citizen of the United States, his application must be made prior to any grant of letters on such estate by the Orphans’ Court of this State, and such right as may be deducible from treaties can only be rightfully claimed in so far as the laws of each country will permit.</p> <p>The right of a consul of a foreign nation to receive and care for the personal estate of a citizen of his own country who may die within his consulate does not include the right of administration of such estate.</p> <p>Treaties are binding on courts as the supreme law of the land, but courts are not required to give them strained construction or unreasonable interpretation, so as to secure to foreigners privileges denied citizens of this country.</p>

(Harlan, J.) The facts are stated in the opinion of the Court. The following are the prayers, with the action of the lower Court upon each, that the Court directed to be published with the report of the case: Deft.’s 1st Prayer.—The jury are instructed that there is no evidence in this case legally sufficient, to entitle the plaintiff to recover under its first count of the declaration, and their verdict must, therefore, be for the defendant under said first count.

<p> Caveats: no damages for filing. Settlements under seal. Fraud: allegations and evidence. Equitable relief: essentials; injury to complainant. </p> <p>Ho damages can he predicated on the filing of a caveat to a will, even though it were filed maliciously and without probable cause.</p> <p>Evidence of fraud, to warrant a court in submitting it to tbe jury, as to the validity of an instrument under seal must be clear and satisfactory.</p> <p>Deliberate settlements and solemn instruments are not to be impeached by light and trivial circumstances which at most furnish a foundation for ingenious minds to speculate upon.</p> <p>Fraud, to he ground for relief, must work an actual injury to the party complaining, and it must appear that he not only did rely upon the fraudulent statement, hut that he had a right to rely upon it in the full belief of its truth.</p>

<p>Appeal from the Orphans’ Court of Harford County.</p> <p>The facts are stated in the opinion of the Court.</p>

<p> Privileged communications: attorney who drafted will. </p> <p>The privilege that protects comm uni cations which clients make to their attorneys is the client’s, and not the attorney’s, privilege.</p> <p>Unless otherwise provided by statute, communications by a client to the attorney who drafted his will, in respect to that document and all the circumstances that occurred between them, leading up to its execution, are not, after the death of the client, within the rule as to privileged communications in a suit between the testator’s devisees and heirs at law or other parties claiming under him.</p>

<p> Illegitimate children: subsequent marriage of parents; acknowledgment by father; capacity to inherit. </p> <p>Under Section 29 of Article 46 of the Code, the subsequent marriage of the parents of a child born out of wedlock and the acknowledgment by the father that it is his child make such child legitimate and capable in law to inherit as if born in wedlock.</p>

<p>Appeal from the Baltimore City Court. (Ambler, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Appeal from the Court of Common Pleas of Baltimore City. (Gorter, J.)</p> <p>The facts are stated in, the opinion of the Court.</p>

<p>Appeal from the Circuit Court for Calvert County. (Briscoe, J.)</p> <p>The facts are stated in the opinion of the Court.</p>

<p>Jurisdiction: lower cowl without—. Appeals: effect of—. Agricultural fairs. Race tracks: license by court; Code, Art. 27, Secs. 218, 221; unconstitutional.</p> <p>If a lower court acts without jurisdiction, the Court of Appeals can review its action on appeal or on writ of error or on its own motion; and in such cases it is not necessary that the question of jurisdiction should have been raised below, as Section 9 of Article 5 of the Code does not apply to such cases.</p> <p>The granting of licenses for agricultural associations, race courses or driving parks under Section 217 of Article 27 of the Code, is not within the ordinary powers of the Circuit Courts.</p> <p>When the Circuit Courts act in the exercise of special jurisdiction, the mode prescribed must be substantially followed.</p> <p>The exemptions of agricultural fairs, race tracks, etc., from the effect of the penal statutes should be by legislation, and not by means of licenses to be given by the Judges, under the provisions of Sections 218 to 221 of Article 27 of the Code, and such sections are unconstitutional and invalid.</p>

<p>Appeal from the Circuit Court for Anne Arundel County. (Moss, J.)</p> <p>The facts are stated in. the opinion of the Court.</p>

<p>Appeal from the Superior Oourt of Baltimore City. (Bom>, I.)</p> <p>The facts are stated in the opinion of the Oourt.</p>

Two appeals in one record from the Circuit Court of Baltimore City. (Gorter, J.) The facts are stated in the opinion of the Court. The causes were argued together before Boyd, C. J., Briscoe, Burke, Thomas, Pattison, Urner, Stockbridge and Adkins, JJ.

<p>J. W. died in January, 1917, leaving a widow and children; by will he gave his widow, during her life only, their home place and certain shares of stock; by an antenuptial agreement it had been agreed between them that whichever one died first, the survivor should have no interest in the decedent’s estate; the children prayed for a declaratory decree to the effect that they were the owners of their deceased father’s real estate subject to the dower interest of the widow; defendant demurred, and the lower court sustained the demurrer; on appeal, the decree of the lower court was sustained by a per curiam opinion and the following memorandum subsequently filed,</p>