Volume 139 — Maryland Reports

J., Peter and Worthington, JJ.). Bill by Lillie L. Grossniclde, individually and as executrix under the will of George O. Grossnickle, deceased, and others, against Charles A. Collins, and George A. Pearre, Jr., executor and trustee under said will. From a decree for plaintiff Lillie L. Grossnickle, defendant executor and trustee appeals.

<p>Landlord and Tenant — Condition Against Assignment — Waiver of Breach — Concurrent Lease — Bight to Enforce Forfeiture.</p> <p>The breach of a condition against the assignment of a lease is not waived by the landlord’s subsequent acceptance of rent from the assignee of a previous lease of the same premises which contained no prohibition of assignment, although such assignee was also the assignee of the subsequent lease.</p> <p>The acceptance of a month’s rent for a floor in a building, by agents of the owners, from assignees of. the lease thereof, held not to show a waiver of a provision in the lease requiring the owners’ consent to an assignment, the agents having no authority to give such assent, and the owners having expressly refused such assent on the ground that they had made to another a lease of the whole building, to become effective at the end of the month.</p> <p>A lease of a building “subject to the existing lease to K. covering the first floor and rear part of the basement” held to place the lessee in the relation of landlord to K., so as to entitle the lessee to enforce a clause of forfeiture in the lease to K.</p>

<p>Appeal from the Orphans’ Court for Dorchester County.</p> <p>Petition and caveat to the will of John H. Wright, deceased, by Frank Wright, Henry M. Wright, Lyda W. Elder and Hattie W. Tatem, praying process against Anne M. Wright, individually and as executrix, and against Eobert Lee Wright and William Wright, infants. From an order refusing to transmit certain issues to the circuit court for trial, and ordering the transmission of certain other issues, Frank Wrigjit and Lyda W. Elder, caveators, appeal.</p> <p>The issues submitted by the caveatees were as follows:</p> <p>1. Was the paper writing, bearing date the 22nd day of Hovember, 1899, purporting to be the last will and testament of John 1ST. Wright, signed by the said John 1ST. Wright or by some other person in his presence and by his express direction, and attested and subscribed in the presence of two or more credible witnesses?</p> <p>2. Was the said John LT. Wright, on the 22nd day of Eoveanber, 1899, at the time the said paper writing, dated as aforesaid, and purporting to be Ms last will and testament, was executed, of sound and disposing mind and capable of executing a valid deed or contract ?</p> <p>3. Was the said paper writing, purporting to he the last will and testament of the said John N. Wright, procured by undue influence exercised and practiced upon him ?</p> <p>4. Were the contents of the said paper1 writing, dated the 22nd day of November, 1899, purporting to be the last will and testament of the said John N. Wright, read to or by him, or known to him at or before the time of the alleged execution thereof ?</p> <p>5. Was the said paper writing, dated the 22nd day of November, 1899, purporting to be the last will and testament of the said John N. Wright, procured by fraud?</p> <p>6. Was the paper writing, bearing date the 28th day of January, 1908, and purporting to- he a codicil to the said last will and testament of the said John N. Wright, signed by the said John N. Wright, or by some other person in his presence and by his express direction, and attested and subscribed in the presence of two or more credible witnesses ?</p> <p>A Was the said John N. Wright, at the time the said paper writing, dated the 28th day of January, 1908, and purporting to he a codicil to Ms said last will and testament, was executed, of sound and disposing mind and capable of executing a valid deed or contract ?'</p> <p>8. Was the said paper writing, dated the 28th day of January, 1908, and purporting to be a codicil to the said last will and testament of the said John N. Wright, procured by undue influence exercised and practiced upon him ?</p> <p>9. Were the contents of the paper writing, dated the 28th day of January, 1908, and purporting to be a codicil to the said last will and testament of the said John N. Wright, read to or by him, or known to him at or before tbe time of tbe alleged execution thereof ?</p> <p>10. Was the said paper writing, dated the 28th day of January, 1908, and purporting to be a codicil to the said last will and testament of the said John E. Wright, procured by fraud ?</p> <p>11. Was the paper writing, bearing date the 6th day of June, 1912, and purporting to be a second codicil to the said last will and testament of the said John E. Wright, signed by the said John E. Wright or by some other person in his presence and by his express direction, and attested and subscribed in the presence of two or more credible witnesses ?</p> <p>12. Was the said John E. Wright, at the time the said paper writing, dated the 6th day of June, 1912, and purporting to be a second codicil to his said last will and testament, was executed, of sound and disposing mind and capable of executing a valid deed or contract ?</p> <p>13. Was the said paper writing, dated the 6th day of June, 1912, and purporting to be a second codicil to the said last will and testament of the said John E. Wright procured by undue influence exercised and practiced upon him ?</p> <p>14. Were the contents of the said paper writing, dated the 6th day of June, 1912, and purporting to: be a second codicil to tbe said last will and testament of the said John E. Wright, read to or by him, or known to him at or before the time of the alleged execution thereof?</p> <p>15. Was the said paper writing, dated the 6th day of Jnne, 1912, and purporting to be a second codicil to the said last will and testament of the said John E. Wright proeured by fraud?</p> <p>16. Was the paper writing, bearing date the day of August, 1912, and purporting to be a third codicil to the said last will and testament of the said John E. Wright, signed by the said John E. Wright, or by some other person in bis presence and by his express direction, and attested and subscribed in the presence of two or more credible witnesses: ?</p> <p>17. Was the said John E. Wright, at the time: the said paper writing, dated the day of August, 1912, and purporting to be a third codicil to his said last will and testament, was executed, of sound and disposing mind and capable of executing a valid deed or contract ?</p> <p>18. Was the said paper writing, dated the August, 1912, and purporting to be a third codicil to the said last will and testament of the said John E. Wright, procured by undue influence exercised and practiced upon him ? day of</p> <p>19. Were the contents of the paper writing, dated the day of August, 1912, and purporting to be a third codicil to the said last will and testament of the said John E. Wright, read to or by him or known to him at or before the time of the alleged execution thereof ?</p> <p>20. Was the said paper writing, dated the day of August, 1912, purporting to be a third codicil to the said last will and testament of the said John E. Wright, procured by fraud ?</p> <p>21. Was the paper writing, bearing date the 20th day of December, 1916, and purporting to be a. fourth codicil to the said last will and testament of the said John E. Wright, signed by the said John E. Wright or by some other person in his presence, and by Ms express direction, and. attested and subscribed in the presence of two or more credible witnesses ?</p> <p>22. Was the said John E. Wright, at the time said paper writing, dated the 20th day of December, 1916, and purporting to be a fourth codicil to his said last will and testament, was executed, of sound and disposing mind and capable of executing a valid deed or contract ?</p> <p>23. Was the said paper writing, dated the 20th day of December, 1916, and purporting to be a fourth codicil to the said last will and testament of the said John E. Wright, procured by undue influence exercised and practiced upon Mm %</p> <p>24. Were the contents of the said paper writing, dated the 20th day of December,'1916, and purporting to be a fourth codicil to the said last will and testament of the said John E. Wright, read to or by Mm, or known to Mm at or before the time the alleged execution thereof ?'</p> <p>25. Was the said paper writing, dated the 20th day of December, 1916, and purporting to be a fourth codicil to the said last will and testament of the said John E. Wright, procured by fraud ?</p>

<p>Appeal from the Circuit Court No. 2 of Baltimore City (Dawkins, J.).</p> <p>Bill by The Clifford Brothers Company against Angela Lombardo for specific performance of a covenant in a lease. From a decree for plaintiff defendant appeals.</p>

). Bill by Garnett Y. Clark against Tames Booker Clark and the Brandenburg Coal Mining Company, asserting a trust in certain bonds. Eroin a decree for defendants plaintiff appeals.

Pleasi of Baltimore City (Heuisler, J.). Petition by Oscar Leser and. others, against J. Mercer Garnett and others, constituting the Board of Registry of the Seventh Precinct of the Eleventh Ward of Baltimore City, asking that, the names of Cecelia Street Waters and Mary D. Randolph be stricken from the registry of voters, by reason of disqualification on account of sex. From an order dismissing the petition, petitioners appeal.

Court for Frederick County (Worthington and Peter, JJ.). Carroll Warfield wasi indicted for placing an obstruction on a railroad track. From a judgment for defendant, the State appeals.

). Action by the State of Maryland for the use of Jemima Smith against the Hagerstown and Frederick Railway Company. From a judgment for defendant plaintiff appeals. The cause was argued before Boyd, C. J., Briscoe, 'Thomas, Pattison, Urner, Stockbridge, Adicins, and Oeeutt, JJ.

<p>Appeal from the Circuit Court for Allegany County (Wagamah, J.).</p> <p>Action by Frances Hears, infant, by her nest friend, Martha Kephart, against Charles C. McElfish. From a judgment for defendant, plaintiff appeals.</p>

<p>Contributory Negligence — Last Clear Chance — Action Against Railroad Company — Engine “Picking Up" Automobile.</p> <p>The doctrine of last clear chance applies as against the- defendant when, with ordinary care and caution, he ought to have been aware of plaintiff’s peril, as well as when he was actually aware thereof.</p> <p>In an action for injury to plaintiff and to his automobile, caused by a collision of the latter with a semaphore, as a result of its being “picked up” by defendant’s engine at a street crossing and so carried along with the train as far as the semaphore, held that upon the evidence plaintiff’s failure to blow his horn after his automobile became attached to the engine did not, as a matter of law, show contributory negligence.</p> <p>In an action for injury to plaintiff and to his automobile caused by the latter’s collision with a semaphore, as a result of its being “picked up”, by defendant’s engine at a street crossing and so carried along with the train as far as the semaphore, held that evidence that defendant’s engineer could have seen the automobile before “picking it up,” and that those in charge of the train were called and signalled to by persons nearby in order to warn them of plaintiff’s perilous position, was sufficient to go to the jury as tending to show that those operating the train, by ordinary care and caution, could have avoided the collision with the semaphore.</p> <p>Evidence as to whether those operating the train used proper care and caution before and while crossing the street was admissible, not to determine defendant’s liability for the injury, if ■any, caused by the collision of the train with the automobile, this not being involved in the suit, but because such evidence aided in determining whether defendant’s employees by proper care and caution could have avoided the collision of the automobile with the semaphore, after they knew, or by reasonable care and caution could have known, of plaintiff’s perilous situation caused by the collision of his automobile with defendant’s engine.</p>

<p>Libe,l — Qualified Privilege — Report by Railroad A gent — Evidence — Question for Jury.</p> <p>A communication by a railroad agent to a superior official, in answer to an inquiry from the latter, in reférence to a claim against the railroad company, is one of qualiñed privilege, involving legal liability only if actual malice is shown.</p> <p>In an action against a railroad station agent for having written, in answer to inquiries from a superior official, that grain shipped by plaintiff was in bad condition when shipped, that plaintiff had tried in vain to sell it, and that the weight of the shipment as given by plaintiff was merely guessed at and was incorrect, held that, in view of a letter written by defendant in regard to another shipment of grain made by plaintiff about the same time, and containing statements derogatory to plaintiff’s honesty, based on hearsay, and evidence that defendant had tried to buy this very grain, that he was himself in the grain business, and that the grain was not in the condition represented by defendant, it was error to take the case from the jury.</p> <p>"While it is a question for the court whether a communication, if made in good faith, without malice and in the belief that it was true, is privileged, if there be evidence tending to show lack of good faith and actual malice, the plaintiff has the right to have the jury pass on the facts.</p> <p>Since, in an action for libel, evidence of the truth of the publication cannot be offered under the general issue plea, it was improper for defendant’s counsel, after all the special pleas had been withdrawn, to allude in his opening statement to such a defense.</p>

J.). Action by Emilie Taylor against the Robert Ramsay Company and the United States Fidelity Company, to recover compensation awarded plaintiff’ by the State Industrial Accident Commission of Maryland. From a judgment for defendants, plaintiff appeals.

<p>Practice Act — Admission by Defendant — Contracts—Automobile Distributor — Failure to Fill Order.</p> <p>If one suing under the Practice Act of 1886 fails, before the trial of the case, to take judgment for the amount admitted in defendant’s affidavit, but elects to proceed to trial for the recovery of the whole amount claimed by him, after joining issue on the defendant’s plea as filed, defendant is not bound by the admission in his affidavit, and the burden is on plaintiff to establish his claim as if no admission had been made.</p> <p>Since a prayer which makes no reference to the pleadings is held to relate exclusively to the evidence, and its correctness is to be determined entirely by a consideration of the evidence, the question is, in passing upon such a prayer asking the direction of a verdict for defendant, not whether the evidence furnishes any proof of the cause of action sued on, but whether it supplies proof of any cause of action whatever.</p> <p>Where the only services rendered plaintiff by defendant were rendered under the terms of a contract in evidence, there can be no recovery under any implied contract for compensation ae-. cording to the value of his services.</p> <p>Where the only loss claimed by plaintiff to have been suffered by him, as a result of defendant’s failure to deliver a certain article, was the loss of a discount from defendant’s list price, allowed him under a contract between them, he had no cause of action in case the contract was no longer in existence at the time he gave the order for the article.</p> <p>Where a company distributing automobiles of a certain make notified a dealer that the contract between them was terminated, and the dealer accepted this as a valid notice of the termination of the contract, within a provision authorizing either party to terminate the contract on violation thereof by the other, held that the company was not responsible for failure thereafter to deliver an automobile to such dealer, the contract by its terms cancelling all orders unfilled at the time of the receipt of notice of termination.</p> <p>A provision in the contract that “all accepted orders shall be filled by the distributor as rapidly as practicable, consistent with the schedule given by the distributor to the dealer, and consistent with the requirements of the distributor’s other customers, subject, however, to delays caused by strikes, fires, transportation difficulties, or any other cause beyond the distributor’s control,” held to exempt the distributor from liability for delay in delivery if it distributed the automobiles in accordance with a definite scheme of allotment adopted by it for the benefit of its business and with no particular reference to this dealer.</p> <p>A provision in a contract that one party shall not be liable for any loss or damage from its failure to deliver goods ordered by the other is binding and effective.</p>

). Action by John J. Streett, executor of John M. Streett, against Henry W. Hodgson, to- recover for personal injuries caused to plaintiff’s decedent in the course of X-ray treatment. From a judgment for defendant, plaintiff appeals.

). Action by John W. Staton, receiver for Calvine Howerton and William B. Dhncan, partners, trading as Howerton & Duncan, against Spencer D. Corbin. Elom a judgment for plaintiff, defendant appeals. Defendant and his brother, James C. Corbin, lived on the same farm, but carried on farming on distinct portions thereof. Separate suits were brought by this plaintiff against the two brothers for barrels delivered.

). Bill by Lida R. Lansdale and others against Frances Adele Seibert for a partition sale of certain property. From a decree sustaining exceptions to the sale, filed by J. Charles Linthicum, the purchaser at such sale, said Lida R. Lansdale and others appeal.

). Action by John T. Fahey and others, copartners trading' as John T. Fahey & Company, against the Baltimore and Ohio Railroad Company. From a judgment for defendant, plaintiffs appeal. The so-called “Cummins Amendment” of the Interstate Commerce Act (38 Stat. at.

). Action bv the West- Construction Company against the Maryland Casualty Company to recover on a contract for certain construction work. Eroni a judgment for plaintiff, defendant appeals.

Proceedings for the administration of the estate of James E. Harris. Prom an order of distribution, Charles E. Harris, individually and as administrator, appeals. The cause was submitted to Loyd, C. J., Bimkooe, Thomas, Pattisox, Pr.xbr, Sroc'KBitnxiK, Adkihs, and Offutt, JJ.

<p>Contract for Jale of Land — Anticipatory Breach — Demand for Return of Deposit.</p> <p>When, in anticipation of the time of performance, one definitely and specifically refuses to do something which he is obligated to do, so that it amounts to a refusal to go on with the contract, it may be treated as a bi-each by anticipation, and the other party may, at his election, treat the contract as abandoned, and act accordingly.</p> <p>While a demand for the return of a deposit on a contract for the sale of land, if made with the intention of repudiating the contract, involves a breach thereof, such is not the case in the absence of any such intention.</p> <p>A demand by a purchaser of land for the return of his deposit on the contract, while a fact to be considered in connection witli the other facts in the case, in determining whether he thereby intended to repudiate the contract, cannot, when associated and connected with an alternative demand that the vendor perform the contract, be treated as amounting in law to a positive and uueqivoeal repudiation of the contract, but the question is for (he jury.</p>

<p>Appeal from the Circuit Court for Harford County (Harlan, J.).</p> <p>Ralph Kelly was convicted -of selling liquor in violation of law, and appeals.</p>

Bill by William F. Cogldan ancl others, constituting tlie Board of Health for Baltimore County, against the Mayor and City Council of Baltimore, and William T. Huso, to enjoin the maintenance of a nuisance. From a decree overruling (laminera to the. bill, defendants appeal.

). Action by John G. Wisner and James W. Wisner, trading as the Wisner Auto Company, against O. H. Eeeside. From an order striking out: a judgment by confession, for plaintiffs, entered under a power of attorney, plaintiffs appeal.

). Bill by suspended members of a Masonic fraternity to compel their reinstatment. From a decree overruling a demurrer to' the bill, defendants appeal.

<p>Appeal from the Circuit Court for Harford County (Preston, J.).</p> <p>Action by Edivin H, Webster against Frank L. Hiser. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from the Circuit Court of Baltimore City (Stump, J.).</p> <p>Bill by Florence Murray against Isidor Zulver and Hilda Zulver, his wife, to establish a trust. From a decree for plaintiff, defendants appeal.</p>

<p>Appeal from the Superior Court of Baltimore City (Duffy, J.).</p> <p>Action by Joseph E. Sainsbury against John A. Guerreni, otherwise known as John A. Guerren. Erom an order overruling a motion to quash a writ of summons, defendant appeals.</p>

<p>Appeal from the Circuit Court No. 2 of Baltimore City (Stump, J.).</p> <p>Bill by Paul M. DeCrette and Margaret DeOrette, his wife, against Charles J. Bonaparte. Ei'om a decree for defendant, plaintiffs appeal.</p>

<p>Presumption on Appeal — Suit for Divorce — Evidence of Adultery — Acts Subsequent to Original Bill.</p> <p>In a suit for divorce, where the lower court had jurisdiction of the" subject-matter and of the persons, its action, in the absence of anything in the record to the contrary, will be presumed to be correct.</p> <p>One seeking to obtain a divorce on the ground of adultery assumes the burden of proving by a fair preponderance of the evidence the facts upon which his right to relief rests,</p> <p>“Preponderance,” used in connection with the weight of evidence, refers not. only to the number of witnesses who testify to a fact or facts in issue; but also to the character of the wit-3 nesses, and to -the intrinsic characteristics of the evidence itself, and the probabilities of its truth when tested by the- ordinary experience of average people in their daily affairs,</p> <p>Testimony, in a suit by the husband' for divorce on the ground of adultery ‘ held insufficient to sustain the burden of proof on plaintiff.</p> <p>In a suit for divorce on the ground of adultery, evidence as to acts occurring after the filing of the original bill, while admissible, under some circumstances, to corroborate testimony as to acts occurring before the filing of the bill, or to remove the effect of condonation, is not in itself sufficient to support a decree for divorce.</p>

) . Issues from the Orphans’ Court on the petition of George A. Pearre, Jr., executor and trustee under the will of George O. Groesnickle. From a ruling in favor of Lillie Groesnickle, widow, eo-exccutor under said will, petitioner appeals.

Appeals from the Circuit Court of Baltimore City (Hettisler, J.). Bill by Ella TL Perin, Marie Louise Whitridge, and huaband, and Lawrence Perin, Jr., against the Safe Deposit & Trust Company of Baltimore, Trustee, Oliver P'erin and wife, Helson Perin and wife, Bradford Perin and wife, Gladys Perin Harrison, Annie Wallingford Perin and Oarnelia Anderson Perin, the two latter being infants.

<p>Appeal from the Superior Court of Baltimore City (Ambler, J.).</p> <p>Action by the Eno Cotton Mills, a corporation, against E. Tileston Mudge and Arthur P. Mudge, trading as Dobler & Mudge. From a judgment for defendants, plaintiff appeals.</p>

). Action by the State of Maryland, for the use of Andrew Henderson, against the United Railways and Electric 'Company. From a judgment for defendant, plaintiff appeals.

J.). Action by the Variety Iron & Steel Company, for the benefit of the Aetna Life Insurance Company and Harry Alies, against the Bethlehem Steel Company. Erom a judgment for plaintiff, defendant appeals.

<p>Appeal from the Circuit Court of Baltimore! City (Heijisi.ee, J.).</p> <p>Proceeding by Alcaeus Hooper, committee of Esther Mabel Young, for the, sale of certain property. From a decree overruling' exceptions to the sale by Frank Winer, the purchaser, he appeals.</p> <p>The cause was submitted on briefs to Boyd, C. J., Bbiscoe, Thomas, Pattisoh, ITenee, Stocxbetdge, Abkixs, and Oeeutt, JJ.</p>

). Claim by the Barber Asphalt Paving Company against Edwin W. Poe and others, Receivers of the United Surety Company. Prom a decretal order disallowing the claim, the claimant appeals.

<p>Appeal from the Circuit Court of Baltimore City (Gorter, J.).</p> <p>Bill by Anna C. Braeeklein against Alfred H. Braeeklein. From a decree for plaintiff, defendant appeals.</p>

<p>Appeal from the Circuit. Court for Garrett County (Wagamaf, J.).</p> <p>Ejectment by tlie Bayard Coal and Coke Company against tlie Strathmore Coal Alining Company and others. From a judgment for plaintiff said defendant company appeals.</p> <p>The plaintiff’s fifth prayer was as follows:</p> <p>The plaintiff, by its counsel, prays tlie court to rule as a matter of law that, if it shall find tlie plaintiff had a right to re-enter the land described in the declaration because of a default, but that the Strathmore Coal Mining Company thereafter remained in possession, negligently disregarding the fact that the lease had terminated, if the court shall so find, then the measure of damages is ■ the value of all coal mined and carried away by such defendant after the expiration of 30 days from the defendants’ receipt of the notice to quit, up to and until the day of trial, estimated either by finding the price at which it would sell when brought up to the surface, and deducting tlie mere costs of bringing it there from the place where it was dug, or by finding its worth before it was removed from the platee where it was dug, after it had been severed from the freehold.</p> <p>The court’s statement of the law of the case, referred to in the opinion, was as follows:</p> <p>The court rules, as a matter of law, that if it finds from the evidence that the defendant, Strathmore Coal Alining Company, was in possession of the land described in the declaration by virtue of an assignment of the lease from the plaintiff offered in evidence, and further finds that the plaintiff brought an action of ejectment in the District Court- of the United States for the District of Maryland against said defendant for the recovery of the land mentioned in the declaration, and that said suit was based on alleged violations of the covenants of the said lease, and resulted in a verdict for the defendant in December, 1917, and that in the trial of said suit evidence was offered by the plaintiff tending to show alleged breaches by the defendant of the covenants of said lease, then the plaintiff is precluded from setting' up in this case any breaches of the covenants of said lease occurring’' prior to said case, and further rules that no evidence tending* to show any acts of waiver by the plaintiff prior to said case is available in support of a defense by the said defendant in this case.</p> <p>And if the court finds the aforegoing facts and further finds that said plaintiff pn or about the 31st day of August, 1918, sent to the said defendant the notice to quit offered in evidence and the same was received by the said defendant, and further finds that the said defendant dug and mined coal from the plaintiff’s said property during the months of January, February, March, April, May, June, July and August, 1918, and further finds that the said defendant failed to pay or to offer to pay the rent or royalty of five cents per ton for said coal dug and mined during the months of March, April and May, 1918, on or before' the 25th clay of the month succeeding that in which the coal was mined and dug (hereinafter for convenience called breach Xo. 1), and further finds that the said defendant failed to exhibit to the plaintiff for each of the months of January, February, March, April and May, 1918, on or before the 25th day of each succeeding month, a copy of a statement of the agent of the railroad company transporting the coal, showing the number of pounds of coal shipped and taken from the said land for any of said months (hereinafter for convenience called1 breach Xo. 2), and further finds that said defendant, on or1 'before the defendant received the notice to quit aforesaid, did not furnish to the plaintiff1 any statement of the coal dug and mined on said land for the months of March, April and May, 1918, nor any blueprint or maps or other information from which the amount of coal dug and mined during said last mentioned months could be ascertained "by the plaintiff, and that said amount of coal was unknown by the plaintiff, and that for the months of January, February, March, April and May, 1918, the said defendant caused to be mixed in the railroad cars the coal taken from the plaintiff’s land and that taken from the lands of others, so that no copy of a, statement of the agent of the railroad transporting said coal, showing the amount of coal taken from said plaintiff’s land could then or at any time thereafter be had, then the court rules as matter of law that the plaintiff was not required to demand payment of the rent or royalty before declaring a forfeiture of said lease (even if under a proper construction of said lease such demand were necessary except- for said conduct of the defendant, but the court does not rule that such, would he a proper construction of said lease) ; and rules further as matter of law that the said breach No. 2 cannot be compensated by money damages, and if in addition to the aforegoing facts the court further finds that no offer to pay rent or royalty for the months of March, April and May, 1918, was made by the said defendant prior to October 28, 1918, and further finds that after said notice to quit the defendant remained in possession of said lands for more than thirty days, and prevented the plaintiff from taking possession of the same, then the plaintiff is entitled to recover; unless the court further finds that subsequent to the breaches No. 1 and No. 2 aforesaid, the defendant paid and the plaintiff received the rent or royalty accruing subsequent to said breaches, or unless the court further finds that the plaintiff’s course of conduct with the said defendant after December, 1917, was such as to lead a reasonable person to believe that the plaintiff has dispensed with its right to declare a forfeiture of said lease, and that the said defendant, relying upon such belief, expended considerable sums of money in the development of said property prior to the notice to quit aforesaid, which sums would be lost to the said defendant on a recovery by the plaintiff.</p> <p>Or unless the court further finds that said breaches Ho-. 1 and Ho>. 2 were not willful, inexcusable or because of culpable negligence on the part of the said defendant.</p>

2 of Baltimore City (Stump, J.). Bill by Franciszek Sicinski and Amelia Sicinski, his wife, against Alexander Powichrowski and Agata P'owichrowski, his wife. Erom a decree for plaintiffs, defendants appeal.

<p>Appeal from the Superior Court of Baltimore City (Ambler, J.).</p> <p>Action by the Louisville Food Products Company against M. Elizabeth Bradley. From a judgment for plaintiff, defendant appeals.</p>

). Petition by John A. Garrett for an order directing James A. Keliker and others, constituting the Board of Registry for the Second Phecinct of Seventh Election District of Montgomery Oounty, to strike from the registration books the name of Harry O. Wilkinson. From an order dismissing the petition, petitioner appeals.

J.). Action by Frank Joseph Godsol against the Nash Motors Company. From a judgment for defendant, plaintiff' appeals. The cause was argued before Both, O. J., Bbiscoe, Thomas, Pattisoh, Ubwbb, Stookbbidgke, Adkiws. and OtWVTT, JJ.

). Action by Abraham diner against the Chicago Bonding and Insurance Company on a burglary insurance policy. From a judgment for plaintiff, defendant appeals.

). Action by the First National Bank of Hagerstown against Edward Gr. Edelen and Benjamin M. Edelen. From a judgment for plaintiff, defendants appeal. The cause was argued, together with that next following, before Boyd, O. J., Briscoe, Thomas, PTttisost, Urkter, Stocicbridge, Adkihs, and Oeeutt, JJ.

). Action by the First National Bank of Hagerstown against Edward G. Edelén. From a judgment for plaintiff, defendant appeals. The cause was argued, together with that nest preceding, before Boyd., C. J., Briscoe, Thomas, Pattison, Urner, Stockbridge, Adkins, and Oeeutt, JJ.

<p>Appeal from the Circuit Court No. 2 of Baltimore City (Stump, J\).</p> <p>Bill by William H. Minch against The Minch and Eisenbrey Company, and others. From 'a; decree for defendants, plaintiff appeals.</p>

<p>Master and Servant — Automobile Instructor — Insurance— Conditional Vendee — Not Unconditional Owner— Theft Within Policy.</p> <p>That the seller of an automobile; as a part of the consideration for the purchase, furnished a man to teach the purchaser how to drive it; that the man gave the purchaser several lessons ; and that the purchaser gave the man “tips,” did not make the man an employee or servant of such purchaser.</p> <p>The purchaser of an article, under a contract of conditional sale by which the title is to remain in the vendor until payment of the unpaid balance of the purchase money, is not the “unconditional and sole owner” thereof, within a requirement of a policy of insurance.</p> <p>That a chauffeur, to whom an automobile was entrusted by the owner, without any directions as to its disposition other than an order to return with it at a later hour on the same day, drove it into the country for his own pleasure, in the course of which drive it was wrecked, does not show that its loss was due to “theft, robbery or pilferage” within the meaning of an insurance policy, it not appearing that he acted with any expectation of personal gain, or that he intended permanently to convert the automobile to his use.</p>

<p>Appeal from the Circuit Court for Frederick County (Worthington and Peter, JJ.).</p> <p>Action by Eugenia Chiswell against Charles. E. Nichols. From a judgment for plaintiff, she appeals.</p>

). Action by William C. Meyer against Frank N. Nichols, trading as Frank Nichols- Company, and Lloyd L. Lambie. From a judgment for plaintiff, defendants appeal.

<p>Appeal from the Circuit Court for Baltimore County (Duhcah, J.).</p> <p>Bill by John T. Gorsuch against Henry G. >M. Bollock, Jr.? and. Estelle Elizabeth ¡Bollock, his wife. E'rom a decree for defendants, plaintiff appeals.</p>

2 of Baltimore City (Stump, J.). Bill by Philip H. Pratt against George E. Gray and. Maud S. Gray, his wife, for specific performance. Prom a decree . for defendants, plaintiff appeals.

). Mandamus proceeding by Abraham Rig-gin and. others against Edward P. Wyatt, Mayor of the City of Crisfield, and others. Erom an order refusing the relief prayed, petitioners appeal.

<p>Appeal from the Circuit Court for Cecil County (Ad-kiss, C. J., Hopper, and Wickes, JJ.).</p> <p>Action by the A. J. Reach Company against. Charles W. Havens, trading as Downingtown Woolen Mills. E'rom a judgment for plaintiff, defendant appeals.</p>

<p>Invalid Arbitration Clause — Insertion in Declaration — Sale of Seed Corn — Implied Warranty of Fitness — Evidence.</p> <p>A count in the declaration, otherwise good, was not rendered bad by the insertion therein of an invalid arbitration clause of the contract in suit, coupled with an allegation fhat no claim was made within the time named for arbitration, no allusion being made to such clause in the trial of the cause.</p> <p>Where, on the sale of corn to a purchaser at a distant point, it was known to the vendor that the corn was bought for seed purposes, and the purchaser relied on the seller to furnish corn reasonably fit for such purposes, no samples being furnished at the time of sale, it was a sale by description, and there was, under Code, art. 83, sec. 36, subsecs. 1, 2, an implied warranty that the seed was of merchantable quality and reasonably fit for seed purposes.</p> <p>A statement, by the vendor of seed corn to the purchaser, that samples of the corn “tested for us between 75 and 80 per cent, and this is as good corn as we can get this year. Most of the corn germinates from 0 to 50 per cent.,” did not justify any consideration by the jury, in determining whether the corn sold was reasonably fit for seed, of the statement as to the germinating power of “most of the corn,” or of evidence as to the low germinating power of the crop of the preceding year.</p> <p>On an issue as to the fitness for seed of corn sold, witnesses who had had experience in the growing, purchase, and sale of seed corn could properly testify as to what was the proper per cent, of germination test for seed corn.</p> <p>On an issue as to the fitness for seed of corn sold, evidence as to the result of germination tests of samples of such corn, made at the laboratories of the State agricultural college, was admissible.</p>

<p>Appeal from the Superior Court of Baltimore City (Sopee, C. J.).</p> <p>Action by H. P. Pearl & Company, Inc., against The Packard Iron & Metal Company, Inc., for non-delivery of goods purchased. Erom a judgment for plaintiff, defendant appeals.</p>

). Action by the State of Maryland for the use of Bruce A. Weaver against the Hagerstown and Frederick Railway Company. From a judgment for plaintiff, defendant appeals.

<p>Motion to Dissolve Injunction — Bona Fide Purchaser — Secret Trust — Equitable Estoppel — Possession as Notice.</p> <p>When a motion to dissolve an injunction is heard on bill, answer and proof, the burden is on plaintiffs to establish their right to an injunction by a clear preponderance of the evidence.</p> <p>Where, though definitely advised, by a representative of the intending purchaser, of the proposed sale of property by the owner of the record title, the beneficiaries under a secret trust therein made no claim of interest, held that they were equitably estopped to assert their claim as against such purchaser, after he had bought the property in good faith and for value.</p> <p>Possession by the' father and sisters of the owner of the record title to property held not sufficient to put purchasers on inquiry as to the rights of the father and sisters in the property, the purchaser’s representative, though in communication with them before the sale, not having been apprised of their claim, and one of the sisters having referred such representative to the holder of the record title for permission to inspect the premises.</p>

<p>Appeal from the Circuit Court for Charles County (Camalieb and Beall, JJ.).</p> <p>Action by Joseph L. Davis against C. Posey Herbert. From a judgment for plaintiff, defendant appeals.</p>

<p>Suit by Wife Against Husband — Statutory Provisions.</p> <p>Under Code, art. 45, sees. 5, 20, a married woman may sue for the recovery, security or protection of her property as fully as if she were unmarried, in a court either of equity or law, and she may be sued separately upon her contracts, and for wrongs independent of contract committed by her, as fully as if she were a feme sole.</p> <p>A married woman may sue her husband at law or in equity for the recovery, security, or protection of her property.</p>

<p>Appeal from the Circuit Court of Baltimore City (Heuisler, J.).</p> <p>Bill hv Thomas J. Eingles against Louisa B. Singer. From a decree for defendant, plaintiff appeals.</p>

<p>Appeal from the Circuit Court for Baltimore County (Pbestoh, L).</p> <p>Criminal proceeding against Frank Novak. From the ' judgment and sentence, said Novak appeals.</p>

<p>Hotel Proprietor — Refusal of Room — Malice—Punitive Damages.</p> <p>In an action against a hotel proprietor for refusing to assign a room to plaintiff and her husband, held, that, in view of the lack of evidence of malice on defendant’s part in such refusal, there was no reversible error in sustaining a demurrer to a count of the declaration which asserted such malice as ground for a finding of punitive damages.</p> <p>An assumption by plaintiff, based on the tone used by defendant’s employee in refusing to assign plaintiff and her husband a room in its hotel, that such employee intended to imply that they were not married is insufficient as a basis for an award of punitive damages as for slander.</p> <p>In the absence of malice or wantonness, or circumstances of aggravation, one can recover, on account of refusal of hotel accommodations, only such damages as were the immediate and necessary consequences of the wrongful act.</p> <p>A rule of a hotel that persons without baggage shall not be given a room, in the absence of proper identification, is entirely reasonable.</p>

). Action by the Orion Knitting Milla, a body corporate, against Joseph Kleiman and Louis Gr. Pollikoff, co-partners trading as the Baltimore Jobbing and Specialty Company, for the purchase price of goods sold. E'rom a judgment for plaintiff, defendants appeal.

<p>Appeal from the Circuit Court for Wicomico County (Bailey and Duer,, JJ.).</p> <p>Action by Berry Dennis against William A. Whitelock. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from the Superior Court of Baltimore City (Ahelee., J.).</p> <p>Action by Edward H. Pindell, an infant, by Bertha Pin-dell, his mother and next friend, ag’ainst Herman Rubenstein and Dora Rubenstein, his wife. From a judgment for defendants, plaintiff appeals.</p> <p>Defendants’ second prayer was as follows:</p> <p>The jury are instructed that the burden is on the plaintiff to establish by a preponderance of the evidence that the gate mentioned in the evidence was, at the time of the accident mentioned in the evidence, in a defective condition and that such condition was or should have been known to the1 defendants; that the injuries mentioned in the evidence as having been received by the infant plaintiff were directly due to such defective condition and that the defendants were negligent in ■failing to have said gate repaired prior to said accident and, if their minds are in oven balance with regard either to whether or not said gate was in such defective condition, that the injuries alleged to have been received by said infant plaintiff were directly due to such defective condition or that the defendants were negligent in failing to have- said gate repaired prior to said accident, they will find their verdict for the defendants.</p> <p>The cause was submitted ou briefs to Boyd, O. T., Briscoe, Thomas, Pattisow, Adkins, Stockbridge; Urner, and Offutt, JJ.</p>

<p>Trover — Conversion by Bailee — Goods Not Paid for— Instructions.</p> <p>In an action of trover, it appearing that the goods converted had been sold by defendant to plaintiff and only partially paid for, it was error to instruct the jury that if they found for plaintiff, their verdict should be for the value of the goods at the time of the conversion, with interest to date.</p> <p>In an action for the conversion of goods stored with defendant by plaintiff, it appearing from the evidence that other goods were retained by plaintiff in his possession, a prayer was erroneous -which, in case of a finding for plaintiff, allowed recovery of “the value of the goods and chattels mentioned in the evidence.”</p> <p>In an action of trover against the vendors of goods, to whom they were returned for storage purposes, the fact that the sale was in form to plaintiff’s wife -was no defense, if the defendants subsequently recognized plaintiff as the real purchaser.</p> <p>That the purchaser of goods had not fully paid the vendors therefor was no defense to an action by the former against the latter on account of the conversion of the goods, when subsequently stored with them, by reselling them to other persons, especially if the defendants accepted from the plaintiff payments on the price after such resale.</p>

<p>Appeal from the Baltimore City Court (Soper, C. J.).</p> <p>Action by Harry Klaff, trading as H. Klaff & Company, against Luria Brothers & Company, Incorporated. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from the Orphans’ Court for Baltimore County.</p> <p>Petition by George M. Housman and others against Addie Blanche Measley. From an order dismissing the petition, petitioners appeal.</p>

<p>Right of Administration — Proof of Relationship.</p> <p>On an issue as to the right of administration, held that the evidence supported appellee’s claim that she was the child of decedent, and so entitled to administer.</p>

2 of Baltimore City (Stump, L). Bill by Marie E. Meyers against the East End Loan and Savings Association of Baltimore City and George W. Meyers, praying a partition sale. Erom decrees denying such relief, plaintiff appeals.

Claim by Eva Webster, as Avidow, under the Workmen’s Compensation Act, on account of the death of Victor Webster, against the Baltimore Dry Docks and Shipbuilding Company, employer, and the United States Fidelity and Guaranty Company, insurer. From a judgment affirming a decision of the Industrial Accident Commission in favor of the claimant, said employer and insurer appeal.

). Action by the Imperial lee Cream Company against W. H. Edgar & Son, trading as Edgar Sugar House. From a judgment for plaintiff, defendants appeal.

L). Action by Louis Ulman against Hbsiiah Lustbader. Erom a judgment for plaintiff, defendant appeals. By the plaintiff’s third prayer the jury was instructed as follows: “The jury are instructed that they are not to consider any of the defendant’s claims of set-off in this case unless the jury find that the same grew out of the labor and materials actually contracted for by the plaintiff and which should have been furnished by the plaintiff.”

<p>Slander — Evidence—-Ruling Necessary for Exception — Direct , tion of Verdict — Waiver. ■</p> <p>Error.in allowing a witness to be asked a particular question is not ground for reversal if the question does not appear to have been answered.</p> <p>In an action for slander, spoken partly in Polish, it was proper to exclude a question, asked by defendant of his own witness, whether “an intelligent Pole would use the language as contained in this declaration ?” this being immaterial.</p> <p>Where defendant’s counsel, at the close of plaintiff’s ease, stated that if the court would uphold his contention on a certain point, he would submit a prayer directing a verdict for defendant, and the court said that “without prejudice I prefer to hear the whole case,” there was no ruling which could be made the subject of an exception.</p> <p>A defendant, by proceeding with his own evidence, waives an exception to the refusal of a prayer directing a verdict in his-favor.</p>

<p>Negligence — Automobile Collision.</p> <p>In an action on account of an injury to plaintiff’s arm, received while he was sitting in a crowded automobile truck, as a result of defendant striking the truck while passing in his automobile, held that the questions of defendant’s negligence and plaintiff’s contributory .negligence were for the jury.</p> <p>One cannot on appeal complain that he was injured by prayers granted at his instance.</p>

Petition by Mary B. Burgess for the revocation of letters of administration granted to Thomas T. Boswell on the estate of Fannie R. Boswell, deceased. From an order dismissing, the petition, petitioner appeals.

). Action by Louis Rubin and Rose Rubin against Alexander Bremen to recover money paid under a contract for-the purchase of real estate. Erom a judgment for plaintiffs, defendant appeals.

<p>Divorce — A dultery.</p> <p>That a woman, accepted marked attention from a man other than her husband, in spite of the latter’s objection, will not sustain a charge of adultery.</p>