Volume 137 — Maryland Reports

<p> Money Had and Beceived-r-Evidence. </p> <p>One claiming that he left with another for safekeeping a certain sum of money has the burden of showing that he did leave such sum, before any burden can rest on sueb other to account therefor.</p> <p>On an issue as to the amount which a son, when about to enter the army, left with his father for safekeeping, held that the evidence produced by the son failed to show that he had so left the amount which he claimed to have left.</p>

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

<p>Appeal from the Circuit Court for Frederick County (Worthington and Peter, JL).</p>

<p>Workmen’s Compensation — Dependent Widow — Remarriage Without Children.</p> <p>Code, Art. 101, Sec. 43, providing that, “on the remarriage of a dependent widow of a deceased employee without dependent children,” her compensation shall cease, has reference to the widow’s lack of dependent children at the time of remarriage.</p>

<p>Appeal from the Orphans’ Court for St. Mary’s County.</p>

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

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

<p>Negligence — Personal Injury — Proximate Cause.</p> <p>That defendant, plaintiff’s landlord, in attempting to repair a pump in the kitchen, negligently caused water to collect upon the floor, held not to be the proximate cause of the injury sustained by plaintiff in slipping the next day upon ice formed by the freezing of the water, the injury being in fact caused by nature’s intervention in freezing the water, and by tfye water .and the ice being permitted to remain on the floor.</p>

<p>Primary Election — United States Senator — Certificate of Nomination — Time of Filing.</p> <p>In view of Acts 1914, Oh. 761, Sec. 1, providing that candidates of the several political parties for the office of United States senator shall be nominated in the same manner as candidates for State offices are required to be nominated, taken in connection with Acts 1914, Oh. 714, providing that certificates must be filed and payments made by candidates for the nomination of Governor, Comptroller, Attorney General; and Clerk, of the Court of Appeals, not less than thirty days before the day of the primary election, a candidate for the office of senator must file his nomination papers thirty clear days before the primary election.</p> <p>Assuming that the statute requires the nomination papers for the office of United States senator to be filed not less than twenty days before the day of the primary election, the filing is too late if on the thirteenth day of April, and the election is fixed for the third of May.</p>

<p>Transaction with Decedent — Competency of Witness — Undue Influence — Action by Administrator — Enforcement of Trust — Substitution of Parties.</p> <p>Under Code, Art. 35, Sec. 3, in an action by an administrator against two relatives of his decedent to have transferred to the former a certain savings bank deposit made by such decedent in her own name and that of one of such relatives, and made payable to the survivor of them, it being alleged that the making of the deposit in that form was procured by undue influence exerted by such relative upon a person lacking in mental capacity; and also to procure an accounting by such relative and her sister as to monies belonging to said decedent alleged to be in their hands, neither the administrator nor either of the said relatives is competent to testify to any transaction with or statement by decedent.</p> <p>On an issue as to whether a certain bank deposit made by decedent to the order of herself and a niece, and in terms payable to the survivor, was caused to be made in that form by the niece’s exertion of undue influence upon decedent, while of impaired mental capacity, held that, even if the relations between such niece and decedent were such as to impose upon the former the burden of showing decedent’s understanding of the transaction and an absence of undue influence on the niece’s part, the burden was sufficiently met.</p> <p>In a proceeding by an administrator to set aside a transfer of a bank account made by decedent to herself and another and to the survivor of them, the administrator cannot assert that such other, having acquired the fund as having survived decedent, holds it in trust for certain nephews and nieces, of whom plaintiff is one.</p> <p>A bill filed by an administrator to set aside a transfer by bis decedent cannot be amended by making certain persons, including plaintiff in bis individual capacity, parties plaintiff, for the purpose of asserting a trust in favor of such persons as regards such fund, since there would then be entirely new parties plaintiff.</p>

The questions asked of witnesses, which were involved in the sixth and eighth exceptions, were as follows: “In what condition did you find him each time that you saw him and “Can you say what was his mental condition when you saw him ?” Plaintiff’s Third Prayer was as follows: “The Court instructs the jury, that if they shall believe, from the evidence, that at- the time of the execution of the paper writing in controversy in this case, and dated March 11th, 1911, the said…

<p>Depositions — Objections to Testimony — Res Adjudicata, — Taking Gase from Jury.</p> <p>A rule of court that no demurrer, motion or other paper, which may require a hearing by the court in advance of trial of the whole ease on the merits, shall be filed until a copy shall have been served on the opposing party, has no application to an exception to and motion ne recipiatur in reference to a deposition, if based, not on the execution or return of the commission, but on the inadmissibility of the evidence taken under the commission.</p> <p>Since Code, Art. 35, Sec. 21, provides for the use of the deposition of a resident witness only when the witness is dead or unable to attend, it may be presumed, in the absence of anything in the record to show such necessity for the use of the deposition of such a witness, that the action of the lower court in excluding it was based on the lack of evidence of such necessity.</p> <p>After the refusal, by the Court of Appeals, as well as by the lower court, to strike out a decree as having been obtained by perjured evidence and fraud, the unsuccessful party cannot bring an action at law against the successful party for damages on account of the asserted perjury and fraud.</p> <p>The defense of res adjudicata can be relied on either by special plea or under the general issue plea.</p> <p>An objection by defendant to the introduction of evidence cannot be regarded as equivalent to a demurrer, for the purpose of enabling the court to pass on the sufficiency of the declaration, or of the different counts thereof.</p> <p>It is error for the court to refuse to allow the plaintiff to introduce any testimony and to direct a verdict for defendant, even though some of the counts of the declaration are manifestly bad and the others are questionable.</p>

<p>Workmen's Compensation Act — Course of Employment — Industrial Accident Commission — Presumption in Favor of Decision — Accident to Autohus Driver— Instructions.</p> <p>On a claim by the widow of an employee of a manufacturing company, on account of his death while driving an autobus belonging to the company, it appearing that deceased was at the time taking home a bandmaster who had been employed by the company to train a band organized by its employees, and who had on that evening come to the company’s grounds to assist the band on the occasion of a picnic, held that it was a question for the jury whether deceased was injured in the course of his employment, the evidence showing that it was part of his duty to take the bandmaster home on his regular weekly visits to instruct the band, and that he “accepted” the driving of the ear on the occasion of this extra visit as a part of his duty.</p> <p>In view of the presumption of correctness, given by Code, Art. 101, Sec. 56, to the decision of the Industrial Accident Commission, for the purpose of appeal therefrom to the courts, and of the burden of proof imposed on the appellant, the court to which an appeal was taken from a decision in favor of the claimant was not justified in directing a verdict for the appellant on the ground that it had successfully borne the burden ■thus imposed.</p> <p>The statute (Code, Art. 101, Sec. 62) characterizing the operation of motor vehicles as extra-hazardous, an injury to one employed to drive an autobus, as the result of a collision with a safety gate at a railroad crossing, must be regarded as an injury which arose out of his employment.</p> <p>The validity of the claim not being contingent upon the existence of negligence on the part of the husband’s- employer in providing him with a safe car in which to render the service for which he was employed, and the risks of his occupation, which made it extra-hazardous, not being confined to those arising from 'conditions over which his employer had exclusive control, it was proper to refuse an instruction that if the accident occurred while the autobus was being driven by deceased on the public highway, and was caused by a collision with a railroad safety gate, neither the highway nor the gate being under the employer’s control, and the injury was not caused by any defect in the autobus, the verdict must be for the employer.</p> <p>There being no evidence to support a finding that the injury resulted from a hazard common to the public and was not fairly traceable to the employment of deceased, it was proper to reject a prayer that the employer was entitled to a verdict if the injury occurred in the course of the employment, but resulted from a hazard to which the driver of the autobus, “in common with other members of the public, was equally exposed apart from his employment,” and the injury “could not fairly be traced to his employment as a contributing proximate cause apart from the usual risks of travel on the public road.”</p> <p>In the absence of evidence legally sufficient to show that there was no causal relation between the employment and the injury, it was proper to refuse a prayer that, in order that the injury may be found to have arisen out of the employment, it must appear that there was a “causal connection between the conditions under which the work was required to be performed and the resulting injury.”</p>

<p>Collision of Automobiles — Intersecting Roads — Joint Tort Feasors — Instructions—Evidlence.</p> <p>There being evidence tending to show that defendant’s automobile was on the wrong side of the road and traveling over a thoroughfare upon which at the time there were many other automobiles and pedestrians, at what, under the circumstances, might be considered an excessive speed, and that the driver of plaintiff’s car was unable to avoid the collision because of the position of defendant’s automobile on the wrong side of the road, held that the question of contributory negligence on plaintiff’s part was for the jury.</p> <p>When the nature of the act relied on to show contributory negligence can only be determined by all the circumstances attending the transaction, it is within the province of the jury to characterize it.</p> <p>A lateral road connecting with, but not crossing, another road, is an intersecting road within Acts 1916, Oh. 687 (Code, Vol. 4, Art. 56, Sec. 163), providing that “all vehicles shall have the right of way over other vehicles approaching at intersecting roads from the left, and shall give the right of way to those approaching from the right.”</p> <p>In an action against the owner of an automobile and his son, for damage caused by its collision with another automobile while it was being driven by the son, it was error to instruct the jury that their verdict must be for plaintiff if they find that the defendant’s son did not give the right of way to plaintiff, approaching from the right, at intersecting roads, and that his failure to do so caused the collision, this in effect telling the jury that, if the son, through his negligent management of an automobile, damaged plaintiff’s car under such circumstances as to give a right to compensation for such damage, then the father, not referred to in the prayer, is a joint tort feasor and jointly liable for the negligent act.</p> <p>Under Code, Art. 5, Sec. 9, that an instruction wrongfully assumed that one of the defendants was responsible for the negligent acts of his codefendant is not available on appeal, if no objection for such defect was made in the lower court.</p>

<p>Appeal from the Superior Court of Baltimore City (Duffy, L).</p>

<p>Summary Proceeding by Landlord — Review on Appeal — Notice to Quit — Giving by Vendor.</p> <p>On a summary proceeding by a landlord to recover possession, if the justice of the peace has jurisdiction thereof, the circuit court has jurisdiction on appeal from the justice, and no appeal lies from such court to the Court of Appeals,</p> <p>The complaint filed with the justice of the peace alleging that plaintiff gave proper legal notice in writing to quit, the facts that the notice appears in the record as having been filed in the circuit court on the day of trial in that court, and that the copy in the record does not bear any signature, do not raise any question for review in the Court of Appeals.</p> <p>If there was in fact no signature to the notice to quit, the tenant, desiring to raise the question of its sufficiency for the purpose of consideration by the Court of Appeals, should have the evidence certified to by the lower court.</p> <p>Although the reversion has been sold, the vendor is the person to give the notice to quit, so long as the deed has not been delivered, provided at least there is nothing in the contract of sale or the circumstances such as to authorize the purchaser to proceed.</p> <p>The circuit court having jurisdiction to decide as to the proper construction of the complaint filed with the justice of the peace, there is no appeal from its decision in this regard.</p>

The following prayers were submitted: Plaintiffs First Prayer. — The plaintiff, by its counsel, prays the court, sitting as court and jury, to rule as the law in this case, that if the court shall find from the evidence in this case, the defendant, Dave B. Kirsner, was duly appointed administrator c. t. a. of the estate of Isaac Baer, deceased, by the Orphans’ Court of Baltimore City, that he accepted said appointment, and gave the bond offered in evidence, and duly entered…

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

<p>Negligence — Wagon Standing on Street — Requirements as to Lighting — Instruction After Jwry Retired— Burden of Proof.</p> <p>In an action against a street railway company on account of injuries to a driver of plaintiff’s wagon caused by an implement in defendant’s trouble wagon which was standing in front of its trouble station, a question asked a witness, as to whether defendant was in the habit of leaving its wagons all night in front of the station held properly excluded, as not relevant to any issue in the case.</p> <p>The facts proved not admitting of a finding that the injury was due to a combination of negligence on defendant’s part and an accident unconnected with negligence on plaintiff’s part, and there being no circumstances to which the doctrine of last clear chance was applicable, held that it was proper to grant a prayer which imposed on plaintiff the burden of proving that the accident was caused solely by some act of negligence of the defendant.</p> <p>In an action against a street railway company on account of injuries to a driver of plaintiff’s wagon, caused by his collision with an’ implement in defendant’s trouble wagon which was standing in the street after dark, it was proper for the court, in answer to a written inquiry from the jury, sent to him after their retirement, to instruct them what were the requirements of the law as to the lighting of a vehicle at rest in the street, with the additional statements that if defendant violated the law in this regard and such violation caused the accident, this law might be considered by the jury, and that the length of time during which a vehicle, properly lighted, remained on the street, was not relevant to any issue in the case.</p>

<p>Sale by Administrator — Exceptions—Necessity of Interest.</p> <p>One who has no interest in decedent’s estate, either as legatee, distributee or creditor, cannot except to a sale by the administrator upon the ground of inadequacy of price, in the absence of any showing of fraud.</p> <p>In the ease of an exception to a sale by an administrator, averring fraud therein, the administrator’s denial under oath of the averment of fraud must, in the absence of any direct evidence in regard thereto, be taken as true.</p>

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

<p>Personal Injuries — Child on Lumber Pier — Implied Invitation.</p> <p>In an action for injuries to a child, caused by the fall of a pile of lumber on a city pier, on which he was playing, held that the pier being devoted by the city, which owned it, exclusively to the use of lumber and other merchants, as a place to unload and store lumber and to unload cargoes of other goods, and the child having consequently no right to be on the pier, there could be no recovery.</p> <p>The mere fact that a city owned the pier did not make the pier a public highway, especially where it was not open for or devoted by the city to the use of the public generally as a highway, and the general public did not in fact use it as such.</p> <p>The uncontradicted evidence showing that the pier was a lumber pier, and was devoted by the city to the use of lumber and other merchants as a place to unload and store lumber, and to unload other cargoes, and that the chief harbor master of the city had issued instructions prohibiting boys from going on the pier, and that boys were repeatedly driven off and arrested for violating such regulation, the fact that persons other than merchants and those having business with them visited the pier, from curiosity or other motives, with the knowledge of the city officials, does not justify a finding of an implied invitation to the public or to the plaintiff, who was injured while playing there, to go on the pier.</p> <p>The doctrine of attractive nuisances held not applicable to the case of a child injured, while playing on a lumber pier, by the fall of a pile of lumber.</p>

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

<p>Appeal from the Circuit Court for Frederick County, In Equity (Worthington, J.).</p>

<p>Negligence of Carrier — Injury to Passenger.</p> <p>In an action for injuries received by a passenger on a railroad train, as a result of the giving way of a car step on which he was standing, held that the question of the negligence of defendant, director general of railroads, his agents or employees, as well as that of the contributory negligence of plaintiff, was for the jury.</p> <p>Where the nature and attributes of the act relied on to show negligence contributing to the injury can only be correctly determined by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and. characterize it, and it is not for the court to determine its quality as matter of law.</p>

<p>Appeal from the Circuit Oonrt for Frederick County (Worthington, J.).</p>

<p>Negligence of Dentist — Evidence.</p> <p>While it is the duty of a professional man, such as a physician or dentist, to exercise ordinary care and skill, it will be presumed, in the absence of evidence to the contrary, that an operation or work performed by him was carefully and skillfully done.</p> <p>In an action against a dentist for alleged negligence, held that the evidence failed to show that the necrotic condition of the jawbone, from which plaintiff suffered after the extraction of a tooth by defendant’s assistant, was the result of negligence on the part of defendant or his assistant.</p>

). The appellant’s prayers were as follows: Appellant’s First Prayer. — The claimant, Charles Schiller, prays the court to instruct the jury that if they shall find from the evidence that said claimant sustained injuries while in the employ of the Baltimore & Ohio Railroad Company, a. body corporate, and in the course of his said employment, then the verdict of the jury must be for said claimant, and the jury is further instructed that they shall determine by their verdict…

<p>Construction Contract — Delivery of Materials — Instructions as to Damages.</p> <p>A provision, in a subcontract for the construction of a road, for the delivery of materials by the contractor “at the site of the work,” means delivery at the place where the materials are needed in the course of the normal progress of the work, and not at a point on the projected roadway remote from the scene of the subcontractor’s operations.</p> <p>In an action by a subcontractor against the head contractors, held that the evidence was sufficient to justify the submission to the jury of defendants’ failure to deliver materials as agreed, for the use of the subcontractor, and the amount of damage accruing thereby to plaintiff.</p> <p>In an action by a subcontractor against the head contractors for breach of contract, plaintiff’s prayer on the subject of damages, based on the hypothesis that he was justified in discontinuing the work because of defendants’ default in delivering materials, which told the jury to allow plaintiff for the work actually done by him under the contract, and to credit defendants with payments made by them to plaintiff, and for materials which they furnished him, held not inconsistent with defendants’ prayer instructing the jury to allow plaintiff the contract price of the stipulated work, added to the amount of damage caused him by defendants’ failure to deliver materials, deducting payments made by defendants to plaintiff, the cost of materials supplied by them, and the reasonable cost of completing the work.</p>

). The appellants’ sixth prayer, as modified by the court, was as follows: The court instructs the jury that if they shall believe from the evidence that the employer did not furnish or agree to furnish the employee with free transportation; or if they shall further believe that the Central Construction Corporation did not provide for the vehicle or means of conveyance which the employee was riding upon or attempting to board at the time he was hurt, then in that event the…

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

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

<p>Appeal from tbe Superior Oourt of Baltimore City (Soper, C. J.).</p>

The plaintiff submitted the following prayers: Plaintiff's First Prayer. — If the jury find that on or about the dth day of December, 1919, the plaintiff was injured by the automobile of the defendant, while being operated by him, and that said injury resulted directly from the want of ordinary care and prudence on the part of the defendant, and not from the want, of ordinary care and prudence on the part of the plaintiff, directly contributing'; to the injury then the…

<p>Undue Influence- — Evidence.</p> <p>On an issue as to whether gifts of savings hank deposits, made by decedent in her lifetime to a niece at whose home she lived, were obtained by the exercise of undue influence, held that, conceding the existence of confidential relations between decedent and such niece, the burden upon the latter of showing absence of undue influence was fully met.</p> <p>The influence of affection, attachment, or gratification, does not make a gift void, especially when it is but the execution of a long-cherished purpose.</p>

<p>Mortgage Sale — Statement of Account — Resale—Inadequacy of Price.</p> <p>That in an account, stated by the auditor in connection with a mortgage sale, and ratified by the court, the trustee who made the sale was charged with the full amount of the price at which the property was sold does not relieve the purchaser from liability for any part of such price which he has failed to pay.</p> <p>Mere inadequacy of price, standing by itself, is not sufficient to vacate a mortgage sale, unless it be so gross and inordinate as to indicate fraud on the part of the trustee and purchaser.</p> <p>In case the purchaser fails to pay the entire purchase money, the court may, upon application of the trustee, decree a resale of the property, at the purchaser’s risk.</p>

Ap-peal from the Superior Court of Baltimore City (Durny, L).

<p>Municipal Corporations — Liability in Tort — Repair of School Building.</p> <p>A municipal corporation, in the maintenance of schools, is performing a public or governmental duty, as an instrumentality of the State, and is not liable for injuries caused by the faulty construction or want of repair of a school building, in the absence of any statute giving, expressly or by necessary implication, a right of action therefor.</p>

<p>Consolidation of Churches — Validity of Proceedings — Assent of Members.</p> <p>Under Code, Art. 23, Sec. 89, authorizing any corporation formed for a religious purpose to unite with one incorporated for a similar purpose, with the assent of “a majority of the members,” and Code, Art. 23, Sec. 17, providing that “any measure within the powers of a majority of the members,” may be validly passed by a majority of a quorum, consisting of a majority of all the members, present in person or by proxy, it is. sufficient that a majority of such members of a church as participate, in person or by proxy, in the voting on the question, vote in favor of consolidation with another church.</p> <p>Provisions of a church charter forbidding voting by proxy in the election of a pastor, and requiring the votes of two-thirds of the members for such a choice, for the amendment of the charter, or for an authorization to the trustees to dispose of any church property, do not apply to the vote or procedure by which consolidation with another church may be effected,</p> <p>Independently of statute, a majority vote at a valid congregational meeting, with a qualified quorum present, is sufficient to pass any measure upon which the meeting is competent to act.</p> <p>That, at a meeting of a church congregation, the terms of a proposed merger with another church were stated as being that the two churches should be consolidated under the name and constitution, and retain the pastor and council, of the other church, and that the councils of both churches should serve as a united body until the next annual election, when two elders and two deacons should be chosen from the church which was holding the meeting, and that thereafter no distinction should be made between the two congregations, was sufficient basis for a vote at that meeting in favor of the merger.</p> <p>Under Code, Art. 23, Sec. 99, authorizing a corporation to .acknowledge any instrument by its attorney appointed under its seal, a certificate of the consolidation of two religious corporations may be validly acknowledged by an attorney duly appointed by each of the corporations.</p>

<p>Automobile Policy — Theft—Person in Assured’s Household.</p> <p>A nephew of the assured, who, while spending a few days at the latter’s home, took the key of the latter’s automobile from his bedroom and obtained the automobile from the public garage at which it was kept, held to be a person “in the assured’s household” within the meaning of the exception in a policy insuring the automobile against theft except by such a person.</p>

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

<p>Authority of Broker — Evidence—Contract of Sale — Evidence of Usage — Hearsay Evidence — Stenographer's Notes— Refreshing Memory — Accord and Satisfaction— Acceptance of Payment.</p> <p>On’ an issue as to the authority of a broker employed by defendant’s decedent in 1918, evidence as to his authority in 1917, while originally irrelevant, was made admissible by later testimony of the broker that he was employed by décedent to buy for him “the same as he always had.”</p> <p>Where the terms and conditions of a contract of sale, as testified to by the broker who made it, were plain and unambiguous, no evidence of custom or usage was admissible either to corroborate the witness or to control or vary the contract.</p> <p>One is not .bound by a usage or custom not shown to have been known to or adopted by him.</p> <p>Error in allowing a question to be asked a witness as to the law of another state, held harmless, in view of the fact that the judge told the jury that they need not be bothered about it, and also granted a prayer which effectively neutralized the effect of the answer given by the witness.</p> <p>One who dictated and signed a letter, held not entitled to testify that a note book produced by him, purporting to contain his stenographer’s notes of the letter, showed that certain figures in the letter were the result of a mistake of the stenographer in transcribing the notes, this being merely the hearsay repetition by the witness of the stenographer’s unsworn statement that the book contained her stenographic notes of the letter.</p> <p>Before a memorandum, not in the handwriting of the witness testifying in regard thereto, can be referred to by the witness or offered in evidence, it must be shown that the witness has before seen it and recognized it as true, and at the time of the trial is still satisfied of its truth.</p> <p>A witness should not be allowed to refresh his memory by the use of a document or writing made by another person, unless he knows it to be correct.</p> <p>Where the witness has no recollection of the facts recorded in a writing, made by another, and sought to be used by him in testifying, it must not only appear that the writing was contemporaneous with the event to which it refers, but that the witness at the time knew it to be correct.</p> <p>The dictation of a letter to a stenographer and its record by her in the form of stenographic notes do not constitute an entry made in the ordinary course of business by a clerk or bookkeeper, .within the meaning of the rule allowing such entries to be offered in evidence.</p> <p>A prayer is not improper because, instead of concluding to recovery, it merely instructs the jury as to the legal effect of certain facts in evidence.</p> <p>A prayer to the effect that if the jury found that a certain broker was employed by defendant’s decedent to purchase the tomatoes involved in the action, and that such broker purchased the said tomatoes from the plaintiff “on the pavement,” then plaintiff was not liable for loss or damage subsequently arising, held improperly granted, in view of uncontradicted evidence that at least one shipment of the tomatoes was ordered directly from plaintiff by decedent, there being thus no evidence that a 1] the tomatoes were purchased through the broker,</p> <p>That a creditor receives less than the amount of his claim, with knowledge that the debtor claims to be indebted only to tin1 extent of such payment, does not necessarily establish an accord and satisfaction.</p> <p>Although there is a dispute between a debtor and creditor a« to the amount which the former owes, the acceptance by the latter of a sum smaller than the amount claimed by him does not operate as a satisfaction of the claim, unless he agrees to accept it in full settlement.</p> <p>An agreement to accept part of a claim as a satisfaction thereof will not be inferred from the mere fact that the claimant áccepts such part with knowledge that the balance is disputed, but there must be in addition some evidence from which it can be inferred that such an agreement was made.</p> <p>In the absence of any statement that checks sent by a debtor to his creditor were sent in full and final settlement of the creditor’s claim, an agreement so to accept them could not be inferred, as a legal presumption, from the fact that, when the debtor sent them, he indicated that he would not pay the balance of the claim, especially if, while complaining of the condition of the goods on account of which the claim was made, he-did not expressly state that he would not pay for the whole quantity shipped.</p> <p>That the creditor’s invoices bore the printed statement: “Receipted bill will not be returned unless requested,” had no particular significance in this connection.</p>

<p>Examination of Witness — Calling for Conjecture — Action on Contract — Evidence—Instructions.</p> <p>A witness having testified that he did not know why his counsel had sent a communication not in harmony with a certain letter of which such counsel had been informed, it was proper to exclude a question asked of the witness as to how he reconciled the communication with the letter, this calling for a mere conjecture.</p> <p>Defendant’s officials having testified that they were not authorized to make such a contract as that which plaintiffs asserted that such officials -did make, the exclusion of a question asked of such officials as to whether they had ever made such a contract with another person was harmless.</p> <p>In an action against a quarry company for failure, in accordance with its contract, to furnish stone for the purpose of a street paving contract, the plaintiffs being a contracting firm and a corporation controlled by the firm, with which corporation the paving contract was made by the city, held that there was legally sufficient evidence tending to show that the corporation, at least, was entitled to recover.</p> <p>Where there is legally sufficient evidence to go to the jury as to one of the plaintiffs and not as to the other, a prayer directing a verdict for defendant, so framed as to apply to both plaintiffs, is properly refused.</p> <p>One cannot, on appeal, avail himself of the objection that a prayer granted at plaintiffs’ request assumed, without legally sufficient evidence, that both of plaintiffs suffered loss by defendant’s breach of contract, in the absence of a special exception on that ground.</p> <p>Tbat in a prayer granted at tbe plaintiff’s request tbe word “plaintiff” was sometimes used, and sometimes “plaintiffs,” held not cause for reversal, considering the prayer in connection witb tbe granted prayers of defendant, in one of wbicb a like varying use of tbe words “plaintiff” and “plaintiffs” also occurred.</p>

<p>Workmen’s Compensation — Course of Employment — .(Juesíion. for Jury.</p> <p>Since, on appeal from a decision by the Industrial Accident Commission, the burden of proof rests upon the party attacking the decision, the question whether the injury arose out of and in the course of employment was one of fact, for the jury to determine on appeal, and it was error to instruct the jury, the decision having been in favor of the claimant, that the uncontradicted evidence showed the claimant not to be an employee of the appellant firm.</p>

). The plaintiff’s prayer was as follows: “If the jury find that the defendant employed the plaintiff to sell or find a purchaser or purchasers! for the Caswell Hotel, and that the plaintiff procured purchasers who were ready, willing and able to purchase! the said property upon the terms authorized by the defendant, if the jury so find; and that the defendant was advised of that fact, and that the names of said purchasers were disclosed to the defendant, and that the…

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

<p>Divorce — Adultery■—Burden of Proof — Evidence of Detectives.</p> <p>The burden of proof is on one asserting adultery as a ground for divorce.</p> <p>The testimony of private detectives as to circumstances tending to show adultery is entitled to no more weight than the testimony of the persons charged with the crime, all being interested witnesses, the former to justify their employment, and the latter to prove their innocence.</p>

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

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

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

<p>Appeal from the Court of Common Pleas of Baltimore City (Hbuisler, L).</p> <p>Plaintiff’s first prayer was as follows:</p> <p>“The jury are instructed that if they find from the evidence that on or about the 10th day of May, 1918, the plaintiff was arrested and taken to the Northeastern Police Station on a warrant charging him with having committed the crime of false pretenses; that on the 30th day of May, 1918, said charge was heard before James A. Dawkins, Esq., the magistrate then presiding at said police station, and after the conclusion of said hearing the plaintiff was committed to the Baltimore City Jail for the action of the Grand Jury of Baltimore O'ity, if the jury so find; that said charge was dismissed by the said Grand Jury on the 10th day of May if the jury so find and shall further find that the defendants aided and assisted the procuring the arrest and prosecution of the plaintiff under such circumstances as would not- have induced a reasonable and dispassionate man to have undertaken such a prosecution from public motives then there was no probable cause for said prosecution and the jury may infer, in the absence of sufficient proof to satisfy them to the contrary that said prosecution was malicious in law and their verdict may be for the plaintiff.”</p>

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

). The motion in, arrest of judgement was as follows.: “The defendants move that judgment be arrested for the following reasons: “1. Because the verdict of the jury is against the evidence. “2. Because the verdict is against the weight of the evidence. “3. Because the court erred in its rulings. “4. Because of newly discovered evidence, and for other reasons to be assigned.”

<p>Appeal from the Criminal Court of Baltimore City (Sophs, C. T.).</p>

<p>Prosecution for Larceny — Evidence—Examination of Witness— Memoranda.</p> <p>uOn a prosecution for the larceny of an automobile, the State may show the condition of the car both when it was stolen and when ifc was recovered, and that the engine numbers had been changed.</p> <p>A witness may properly testify that he and another were the owners of the stolen car.</p> <p>A witness could properly be asked whether he had himself verified the number, on a card given him by another, which purported to be the motor number of the stolen automobile.</p> <p>On a prosecution for the larceny of an automobile, a receipt given by the person from whom the automobile was purchased by the alleged owner, held inadmissible to prove ownership, it being hearsay.</p> <p>A memorandum, though not in the handwriting of the witness in connection with whose testimony it is offered, is admissible if he examined it when it was first made, had knowledge of the facts it recorded, then believed it to be accurate, and still so believes.</p> <p>A request to reverse a judgment of conviction for insufficiency of the evidence, not based on any exception contained in the record, or on any ruling of the lower court, will be refused.</p>

). Appellant’s (defendant’s) prayers were as follows: First Prayer. — The court instructs the jury that the undisputed evidence in this case shows that the accident complained of was caused by negligence on the part of the plaintiff and the verdict of the jury shall, therefore, be for the defendant.

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

<p>Counsel Fee — Prior Adjudication.</p> <p>Appellant, in her answer to appellees’ petition, having made no objection as to the amount of the counsel fee to be allowed appellees, but merely questioned the latters’ right to any counsel fee, and this question having been decided in their favor on a former appeal, held that the order allowing them a named amount should be affirmed.</p>

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

<p>Roller Coaster — Contributory Negligence.</p> <p>One killed by falling from a roller coaster, while standing in the car, in disregard of printed admonitions, which he had read, and of spoken warnings, held to be guilty of contributory negligence.</p> <p>The doctrine of last clear chance held not to apply so as to impose liability on the proprietor of a roller coaster for the death of one who fell from the car as a result of his negligence in standing therein.</p>

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

). The question referred to in the second bill of exceptions, asked of plaintiff’s father, was. as follows: “Q. Now if he had continued to live, do you think you could reasonably have expected that he would continue to provide for your wife and yourself, as he had done during; the last three years of his life?” The question referred to in the fifth bill of exceptions, asked of the mother of deceased, was as follows: “If your son had lived do you think you could reasonably…

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

<p>Joint Trustees — Appeal by One — Interest of Appellants.</p> <p>Since joint trustees must act jointly, an appeal by one trustee, not joined in by his co-trustee, will be dismissed.</p> <p>An appeal by persons who are not parties to the cause, who did not intervene by petition to be made parties for the purposes of an appeal, and whose interests in the subject-matter of the appeal do not affirmatively appear from the record, will be dismissed.</p>

<p>Testamentary Provision by Husband, — Election by Widow — Rescission — Issues from Orphans’ Oourt.</p> <p>An agreement by testator’s widow to accept the provisions of the will in her favor in lieu of dower or statutory rights, “provided I shall be given’’ the extra meat and lard on the farm, held to be subject to rescission by the widow upon being notified by the executor that she could not have the meat and lard.</p> <p>The facts averred in a petition filed in the oiphans’ court not being questioned or denied, and a letter referred to in the petition being before the court, held that there was no occasion for framing issues to be sent to a court of law for trial.</p>

<p>Appeal from the Orphans’ Court for Frederick County.</p>

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

). The second prayer of appellee (plaintiff) was as follows: The jury are instructed that in case their verdict shall be for the plaintiff they are at liberty in their sole discretion to allow the plaintiff interest at the rate of six per cent, per annum from the time when they shall find from the evidence the damages sustained by the plaintiff (if the jury shall so find) were incurred.

<p>Measure of Damages — Injury to Personal Property.</p> <p>When personal property is damaged but not entirely destroyed, the measure of damages is the cost of repairing the property, together with the value of its use during the time that it would take to repair it.</p>

<p>Street Bailway — Accident at Grossing — Last Clear Chance— Duty to Look and Lisien — Instructions.</p> <p>The doctrine of last clear chance is not applicable in favor of one run down by a street car unless the motorman knew or, by the exercise of due care, might have known of such person’s probable peril, in time to avoid the accident.</p> <p>That a granted prayer of defendant charged plaintiff with the duty of listening as well as looking, before crossing defendant’s track, held not ground for reversal, since, even granting that plaintiff was not bound to show that he listened, if the jury believed that he slowed down his motorcycle and looked for approaching cars, they could have no doubt that he also listened, there being no evidence that his sense of hearing was impaired.</p> <p>That a granted prayer of defendant instructed the jury that plaintiff had the burden of establishing “the state of facts alleged in the declaration,” held not cause for reversal, the declaration alleging in detail the injuries sustained by plaintiff, and his proof sustaining the allegations on that subject being without contradiction.</p>

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

<p>Appeal from the Circuit Court for Talbot County (Adkins, C. J., Hopper, and Wiokes, JJ.).</p>

<p>Appeal from the Circuit Court for Wicomico County (Pattison, O. J., Bailey, and Duer, JJ.).</p>

<p>Res Adjudicóla — Order of Orphans’ Court.</p> <p>A prior judicial decision, in order to be conclusive of a question raised in a separate suit, must have been a final judgment on the merits rendered in the exercise, and within the scope, of a competent jurisdiction, and the subject and parties in both causes must be identical.</p> <p>A decision on the issue of survivorship as between husband and wife, both killed in the same accident, rendered by the orphans’ court, in accordance with a mandate of the Court of Appeals, in a case involving the determination of who were entitled to the husband’s personal estate, is not conclusive upon the issue of survivorship in a suit in ejectment, by the heirs of the wife against the heirs of the husband, to determine the title to his real estate.</p>

<p>Appeal from the Criminal Court- of Baltimore City (GrORTER, L).</p>

<p>Garnishment — Contract Not Produced — Delay in Objecting— Defense Through Garnishee — Right of Appeal— .Motion to Quash.</p> <p>That the contract, by which defendant was alleged to be indebted, was not attached to the voucher or account filed with the affidavit, cannot be asserted by a motion to quash the attachment, not made until after the jury had rendered its verdict on the merits, when it was too late to correct the defect by amendment.</p> <p>The defendant having elected to make its defense through the garnishee rather than to appear and plead for itself, it cannot complain that the garnishee failed to appeal from a ruling adverse to defendant.</p> <p>Error in refusing to take the case from the jury for want of legally sufficient evidence to prove the debt is to be availed of by appeal from the judgment against- the garnishee, and not by a motion to quash.</p>

<p>Municipal .Employee — Removal.</p> <p>Acts of the head of a municipal department done upon a certain date, such as striking an employee from the pay roll, if done upon the assumption that the employee had previously been removed, did not constitute a removal of the employee on that date.</p> <p>A statement by the head of a municipal department to an employee therein, made April 1st, that he had been removed M'arcli 30th, this being the first notice to him in regard to his removal, held not to show a removal on the earlier date.</p>

<p>Hotel — Barber Shop Concession — Violation—Equity Procedure — Supplemental Relief.</p> <p>The lease by a company of “the barber shop and manicuring concession in its hotel” held to give to the lessee, during’ the continuance of the lease, the sole and exclusive right to operate a barber shop and manicuring establishment in the hotel, which was violated by the action of the company in leasing to another a barber shop, directly connected with the hotel lobby, in an adjoining building.</p> <p>Relief by injunction against the maintenance of a competing shop in the same hotel, in violation of petitioner’s rights under a previous lease of a shop therein, held supplemental to a previous proceeding for an injunction to prevent his ejection from the latter shop, and properly sought by a petition in that case, and not by an original bill in a separate proceeding.</p>

<p>Resulting Trust — Statute of Frauds — Specific Performance.</p> <p>A resulting trust in certain land did not arise in favor of plaintiffs, without the payment by them of any money, merely because defendant, before purchasing such land, had agreed to. sell to them specific parts of the land.</p> <p>An agreement by one, in case of his purchase of certain land, to sell specific parts thereof to the other parties to the agreement, is within the statute of frauds.</p> <p>Specific performance of an alleged agreement by defendant, in the event of his purchase of ceratin land, to sell parts thereof to plaintiffs, held improper, in view of the lack of evidence as to the existence and terms of such agreement.</p>

<p>Municipal Assessment — Time of Inception of Lien.</p> <p>The Ken of a municipal assessment, when no time is expressly-named by the statute, ordinarily accrues at the time of the assessment.</p> <p>Under Baltimore City Charter, Sec. 185, providing that all sums assessed by the Commissioners for Opening Streets, upon property deemed by them to be benefited, shall be Kens until paid on the property so assessed, the Ken attaches at the time when, under Section 177, the review of the commissioners is closed and a corrected statement of the valuations and assessments is recorded in their book of proceedings and certified under the hands and seals of the commissioners and their clerk, and the parties interested notified that the assessments have been completed.</p> <p>That an appeal is taken from the action of the commissioners cannot affect the existence of the Ken, although it is subject to modification or defeat by the judgment of the court to which the appeal is taken.</p>