Volume 140 — Maryland Reports

<p>Mechanics’ Lien — Furnishing Materials- — Goal and Oil — Depreciation — Time of Notice — Completion of WorTc — Separate Contracts.</p> <p>When lienahle and non-lienable items are included in one entire contract for a specific sum, and the value of the lienable and non-lienable items is not apportioned, but is made the basis of a lumping charge, no lien can be enforced. p. 6</p> <p>Goal and oil used in running the machinery- employed by the contractor in doing the work, and depreciation of the machinery, do not constitute materials furnished, for the purpose of the mechanics’ lien law, which gives no lien for materials furnished in Baltimore City, and consequently the inclusion of such items in the total contract price for work to be done there, without any apportionment of the items, will not preclude the claim of a lien for work so done. pp. 6-10</p> <p>The inclusion of a profit in the contract price, without any apportionment of such item, does not affect the right to a lien for the amount due under the contract. p. 6</p> <p>The delay of a contractor in the final completion of certain grading work held, on the evidence, not to have been for the purpose of bringing his notice of intention to claim a lien within the time fixed by statute. p. 11</p> <p>That certain notes were given to a contractor on account of work done by him, which notes, by the provision of the contract, were to be given, only on the completion of the work, was not conclusive that the work was completed when they were given, for the purpose of determining the time, within which a lien claim could be filed. pp. 11,12</p> <p>That, a company, which was on the bond of a contrae for, took over the work for its own protection, did not affect the right of a subcontractor, subsequently completing his subcontract, to file a claim within the statutory period after such completion. p. 12</p> <p>When materials are furnished, or work done, under separate contracts, the right to a lien must date from the time of furnishing the different parcels of material, or of doing the different pieces of work, and not from the last item. p. 13</p>

) Action by Lester E. Barnes., the Finance and Guaranty Company, and the S'eitz Auto Company, against the United Railways and Electric Company of Baltimore City. From a judgment for defendant as against the Finance and Guaranty Company and the Seitz Auto. Company, they appeal. Reversed.

<p>Appeal from the Baltimore City Court (Dawkins, J.).</p> <p>Action by Jacob Boschenski against Thomas M. Harrington and. others. From a judgment against said named defendant, he appeals.</p>

<p>Appeal from the Court of Common Pleas of Baltimore City (Bonb, J.).</p> <p>Action by Leon D. Lowenthal against the B.aekus Motor Company. Prom a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from the Circuit Court. Ro. 2 of Baltimore City (Stump, J.).</p> <p>Bill by Charles R. Roberto against Amedeo Catino' and Vincent L. Palmisano, administrators of Salvatore Papio, deceased. From a decree for defendants, plaintiff appeals.</p>

Petition by William P. Basin, as next- friend of William W. Paca, a lunatic, for the appointment of a guardian ad litem to file a caveat to a will. From a decree dismissing the petition, petitioner appeals.

2 of Baltimore City (Stump, J.). Bill by J. Frank Fox against Mary Fraebel, A. Edward Fraebel, her husband, and the Bradford Loan and Savings Association. From a decree dismissing the bill, plaintiff appeals.

<p>Appeal from the Circuit Court of Baltimore City (HecisLEB, J.).</p> <p>Bill by Sarah Y. Miller against John H. Miller and others. From a decree dismissing the original bill and granting the prayer of the cross-bill, plaintiff appeals.</p>

Action by Robert H. Goldsmith and Thomas M. Dell, trading as Goldsmith & Dell, against the United States Fidelity and Guaranty Company, for commissions. From a judgement for defendant, plaintiffs appeal.

<p>Appeal from the Baltimore City Court (Sopee, O. L).</p> <p>Action by the Mayor and City Council of Baltimore against the Pennsylvania Railroad Company. From a judgment for plaintiff, defendant appeals.</p>

Office. Caveat by John F. Shipley and George J. Cook to a certificate of survey filed in connection with an application for a patent by Joshua S. Linthicum. From an order sustaining the caveat, said Linthicum appeals.

<p>Appeal from the Superior Court, of Baltimore City (Gorter, J.).</p> <p>Action by Eleazer Winakur against Louis A. Hazard. From an order quashing an attachment caused to be issued by the plaintiff, he appeals.</p>

2 of Baltimore City (Stump, J.). Bill by Samuel Needle and Jacob L. C'ardin against Samuel Kleiman and Minnie Kleiman, his wife, and Simon Needle. From a decree for plaintiffs, said Kleiman and wife appeal.

). Action by the State of Maryland, to the use of Charles M. Goodwin, against the Washington, Baltimore and Annapolis Electric Railroad Company. From a judgment for plaintiff, defendant appeals. For decision on former' appeal, see 137 Md. 543.

). Bill by Howard E. Lewis and others against Frank S. Lewis and others. From a decree directing a sale for the purpose of partition, and appointing Harry S. Carver and W. Worthington Hopkins trustees to make sale, said Frank S. Lewis appeals.

). Action by the State of Maryland, for the use of Josephine M. Walker, against Glenn M. Riley. From a judgment for plaintiff, defendant appeals.

). Action by John Curlett against Wilson and Company, a corporation, for the purchase price of canned tomatoes. Eiom a judgment for plaintiff, defendant appeals.

<p>Landlord and Tenant — Uncompleted Apartment — Effect of Entry.</p> <p>Where the lease of ail apartment in a building in course of construction provided that the monthly rent named should begin from completion of the apartment, the fact that the lessee took possession before the apartment was completed did not impose on him liability for such rent from the time of his taking possession, but he was liable only for the fair value of Ids use and occupation of the unfinished apartment.</p>

<p>Appeal from the Circuit Court for Howard County (Forsythe, J.).</p> <p>Criminal proceeding against John Dunn. From a judgment of conviction, defendant appeals.</p>

<p>Orphans’ Court — Appointment of Co-Administrator — Waiver of Notice — Allegations of Answer.</p> <p>When a case is submitted to the orphans’ court on a petition and answer, both under oath, and no testimony is taken, the allegations of the answer are to be taken as true. p. 170</p> <p>The selection of the one of the class of persons named in Code, art. 93, sec. 18, to whom, to the exclusion of the others, letters of administration shall issue, is committed to the discretion of the orphans’ court, and from its order in that respect no appeal will lie. p. 170</p> <p>The provision of Code, art. 93, sec. 16, that “no such administration shall be granted until at least twenty days after the death of the supposed intestate and at least seven days after application therefor” is applicable only when the intestacy is not notorious, or has not been proved to the satisfaction of the orphans’ court, and does not apply when the intestacy is alleged and admitted. p. 171</p> <p>One who knew, in time to appeal, of the grant of letters to another, and failed to appeal, or to ask the revocation of the letters, and filed a petition asking to be appointed co-administrator, thereby waived the absence of notice of such other’s application for administration. p. 171</p> <p>The person appointed as administrator, from the class of persons first entitled, is the person first entitled, within Code, art. 93, sec. 15, providing that administration may be granted to two or more persons, with the consent of the person first entitled, and consequently, after appointing the son of deceased administrator, the orphans’ court cannot, without his consent, appoint the widow as co-administrator. pp. 171, 172</p> <p>That one is indebted to the estate does not affect the validity of his appointment as administrator. p. 172</p>

<p>Life Insurance — False Statements by Insured — Materiality and Effect.</p> <p>That the applicant for life insurance made false statements of a material character, in reliance on which a policy was issued, constitutes a defense to an action on the policy, regardless of whether he made them in good faith. pp. 181, 184,186</p> <p>In the case of a defense to an action on a life insurance policy, based on a false statement by the insured involving concealment of the fact that he had been treated for tuberculosis, the issue is, not whether he actually had the disease, but whether he concealed from the insurer, knowingly or inadvertently, facts known to him of such probative force or value that, in all reasonable probability, the insurer would have accepted them as sufficient proof that he had been afflicted with it.</p> <p>p. 180</p> <p>Where the falsity and materiality of the representations made by the insured are shown by clear, convincing, and uncontradieted evidence, the court, in an action on the policy, may so rule as a matter of law. pp. 179,180</p> <p>That an applicant for life insurance stated that he had never had any illness or disease other than minor complaints, that he had been treated within five years by but a single physician, whose name he gave, and that he had never been under treatment in any hospital or sanitarium, involved material misstatements, when he had in fact had pulmonary tuberculosis, had within five years been treated by two other physicians, and had been for over a year under treatment in a sanitarium for that disease. p. 179</p> <p>On an issue as to false representations by an applicant for life insurance, involving the concealment of the fact that he had been treated for tuberculosis, evidence that the insured</p> <p>might possibly have lived for a period of normal duration although he had such disease, and that before his last illness he was apparently in good health, was irrelevant. p. 381</p> <p>That the records of a “medical information bureau,” an organization maintained to afford to insurance companies information relating to persons applying for insurance to the companies served by the bureau, showed that “Robert A. Loving” had pneumonia in 1914, did not charge a company, to which he applied for insurance five years later, under the name of “Arthur Loving,” with knowledge of the falsity of a statement then made by him that he had never had any but minor diseases. ■ p. 182</p> <p>On an issue as to false representations by an applicant for life insurance, involving the concealment of the fact that he had been treated for tuberculosis, self-serving declarations by the insured, that the insurer’s agent was informed by him of the falsity of the statements in his application, are inadmissible. , pp. 188,184</p> <p>The declaration of an agent, to be binding upon the principal, must at least have been made during the agency, and pending the transaction to which it relates. p. 185</p> <p>The beneficiary under an insurance policy cannot avoid the effect of a material misstatement made in the application for insurance, by showing that the insurer’s agent knew and approved of the misstatement, this involving a fraud upon the insurer, and an agent’s knowledge not being imputable to the principal in favor of a third person who knows that the agent will not advise the principal. ' pp. 185,186</p>

<p>Real Estate Broker — Commissions—Offer to Purchase.</p> <p>In an action by a real estate broker for commissions, hild that whether plaintiff was the procuring cause of the sale was, under the evidence, a question for the jury. pp. 189, 190</p> <p>If one, employed to sell property as a broker, thereafter proposes to purchase the property for himself and in bis own name, be thereby terminates the relation :f agency, and cannot recover commissions. • p. 190</p>

<p>Appeal from the Baltimore City Court (Soutcr, C. J.).</p> <p>Action by the Union Trust Company of Maryland against Daniel A. Leonard. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from the Baltimore City Court (Sopjetc, C. J.).</p> <p>Actio'll by the Onion Trust Company of Maryland against Daniel A. Leonard. From a judgment for plaintiff, defendant appeals.</p>

<p>Malicious Prosecution — Probable Cause — Motive—Embezzlement by Agent — Custom—Costs on Appeal— Printed Argument.</p> <p>Plaintiff must prove, not only that the proseciition was instigated by defendant and that it terminated in an acquittal, dismissal, or abandonment, but also that there was no probable cause for defendant’s action. p. 209</p> <p>It. is wholly immaterial whether the accused was actually guilty, if the facts known to defendant were such as to lead “a cautious man” to that conclusion. p. 209</p> <p>Want of probable cause is not to be inferred merely because defendant may appear to have been actuated by malice in promoting the prosecution, although from the want of probable cause an inference of malice may be justified. p. 209</p> <p>The sufficiency of the evidence to prove want of probable cause is a question which the court is authorized to decide.</p> <p>p. 210</p> <p>A retail dealer, to whom pianos were consigned by the manufacturer for sale on account of the latter, the proceeds to he collected by the consignee as agent and immediately remitted, having failed to remit or account for the proceeds of pianos sold, and having made reports which failed correctly to show what sales had been made and monies collected, held that there was probable cause for the action of the manufacturer in causing the dealer’s prosecution for embezzlement. pp. 211, 212</p> <p>Where probable cause existed, it is immaterial that defendant instigated the prosecution of plaintiff as a means of enforcing payment of the latter’s indebtedness to the former, or that he offered to refrain from criminal prosecution if plaintiff would repay the money misappropriated by him. p. 21 <5</p> <p>There being probable cause for a prosecution for embezzlement, the fact that the grand jury, before -whom the defendant’s complaint was made, indicted plaintiff for larceny as well as for embezzlement imposes no liability upon defendant, p. 213</p> <p>The refusal to allow a witness to testify as to the contents of a letter is not a subject for review, if the letter itself was not relevant. _ p. 213</p> <p>Evidence as to a custom, which is in conflict with the terms of the contract defining the rights and duties of the parties, is incompetent. ]). 214</p> <p>Under Rule 40 of the Court of Appeals, the appellee will, on affirmance, be allowed the cost of his printed argument only to the extent to which it does not exceed the purposes of a brief, which is defined by Rule 39 as “an abstract of the case and a full and explicit statement of the several points relied on, with the authorities sustaining them, accurately cited, and distributed under their proper heads.” ' pp. 214,215</p>

<p>Conditional Vendee — Authority to Resell.</p> <p>A letter from the conditional vendor of certain articles to the vendee, instructing him to sell them at a named price, and to remit the amount still due the former thereon, on the strength of which letter another purchased the articles from the vendee, paying him such price, held to justify a finding that such vendee was constituted the vendor’s agent to resell the articles.</p>

<p>Insurance — False Statement — Insertion by Agent.</p> <p>Where the insurer’s agent, without asking about incumbrances on tbe property, inserted in the policy a false statement- in this regard, the insured, by accepting the policy, adopted such statement, and cannot claim that the insurer was estopped, by the action of its agent, to assert the falsity of such statement, both the insurer and its agent being ignorant thereof until after the loss.</p>

). Bill by Adam Weininger against John Weininger and Catherine Weininger for specific perform,anee and an injunction. From a decree for plaintiff, defendants appeal.

Appeals from the Baltimore City Court (Dawkihs, J.). Petitions by the Melvale Distillery Company, a corporation, and by Morris Sehapiro and others, trading as the Stewart Distilling Company, by way of appeal from certain rulings of the State Tax Commission of Maryland. Erom orders reversing the rulings of the State Tax Commission, said commission appeals.

<p>Beal Estate Broker — Execution, of Contract — Revocation of Authority.</p> <p>One employed, to find a purchaser for land, or to sell land, has, in the absence of express authority to that effect, no power to sign a contract of sale. p. 245</p> <p>Authority given a real estate broker to sell certain land held to have been revoked by a notification to him from the owner not to sell it. p. 246</p>

Petition by Leah B. Hagner and Anna R. S. Talley, executrices of Florence B. Simmons; deceased, against Roger E. Simmons. From an order directing an issue, as proposed by the petitioners, to be transmitted to the Circuit Court for Washington County, said respondent appeals.

<p>Option in Lease- — Duration—Sale of Reversion.</p> <p>On an issue as to the validity of a lease, held that the lessor was the real owner of the property, though the title was nominally in his son and partner. ' p. 255</p> <p>One purchasing property with knowledge that plaintiff was ia possession of the property was charged with notice as to plaintiff’s rights and interests under a lease thereof to him.</p> <p>p. 256</p> <p>"Where a lease for six months, with a privilege of renewal for another six months, provided that all its provisions and covenants should “continue in force from term to term after the expiration of the term” first mentioned, hut either of the parties should have the right to terminate the lease at the end of any term by giving thirty days’ notice, and that the lessee should have an option to purchase the property “within the term” of the lease, held that the lessee had the right to exercise such option until the lease was brought to au end by the method prescribed. pp. 256, 257</p>

<p>Annulment of Marriage — Fraud.</p> <p>Regarded as a ground for the annulment of marriage, there is no distinction between a fraud which induces consent, and a fraud which induces the appearance but not the reality of consent. pp. 265-267</p> <p>In Maryland a marriage procured through fraud may be avoided. p. 267</p> <p>Where fraud- is recognized as a ground for the annulment of a marriage contract, it must be of such a character as to go to its very essence, and affect the free consent thereto of the injured party, and therefore, in any inquiry as to the existence of such fraud, the capacity of the party upon whom it was practiced is a material fact. ' p. 26S</p> <p>Where the misrepresentations or fraud relate to accidental matters, such as rank, fame, fortune, habits, temperament or the like, they do not go to the essence of the contract, and are not sufficient to justify the annulment of the marriage, but where the fraud relates to essential matters necessarily affecting the health or well-being of the parties themselves or any offspring of the marriage, it is sufficient for this purpose.</p> <p>p. 268</p> <p>Where a fraud, practiced upon a person of immature years or weak mind, of such a character as to necessarily affect the health or well-being of the person injured, and where the true facts are such that no person of ordinary prudence would- have made the contract with knowledge of them, induces such person to enter into a marriage contract, that contract may be avoided upon the- application of the injured person, provided the application is made promptly upon the discovery of the fraud, where the status of the parties has not been affected by the intervention of the rights of children, born or unborn. p. 270</p> <p>Where a professional swindler, whose life had been largely spent in prisons and reformatories, and who was thereafter arrested and sentenced for crimes previously committed, induced a girl eighteen years old to marry him by false statements that lie had left college to serve in the World War, that he was four years in service at the front and had been severely wounded, and that he was an honorable member of society, occupying a responsible position, held that, the girl having, as soon as she discovered the fraud, severed their relations and repudiated the marriage, she was entitled to have the marriage annulled. p. 271</p>

<p>Appeal from the Court of Common Pleas of Baltimore City (Bond-, J.).</p> <p>■Action by Robert B. Johnson against William O. Frederick and Isabelle Frederick. From a judgment in laA^or of the first named defendant, plaintiff appeals.</p>

<p>Intoxicating Liquors — Refund of License Fee — Construction of Statute.</p> <p>Acts 1920, eh. 431, authorizing and directing Baltimore City to refund, to every holder of a license to sell intoxicating liquors for the year May 1st, 1919, to May 1st, 1920, “the amount of the unused license from July 1st, 1919, to May 1st, 1920, which was paid to the city,” required the city to refund, not the license fee received for the entire period last named, hut merely such portion thereof as represented the portion of such period during which the license was unused by the licensee.</p> <p>pp. 290-292</p> <p>One was not entitled to have the license fee refunded for the time, after the sale of intoxicating liquors became illegal, during which he used his license for the sale of liquors which, though not in fact intoxicating, were within the definition of intoxicating liquors as given in the city charter. p. 291</p> <p>While the title of an act may he looked to in doubtful eases in arriving at the intention of the Legislature, it will not he permitted to control the express language of the act. p. 291</p>

). Petition by Marie Williamson Hall, individually and as executrix of the will of William Carvel Hall, deceased, and others, against W. Hall Harris and E'rancis Nash Iglehart, Trustees, Anne Oalhonn Iglehart, and others, for the construction of a will, a sale for purposes of partition, and other relief. From the decree rendered, said Anne Calhoun Iglehart appeals.

Appeals from the Circuit Court Mo. 2 of Baltimore City (Stump, J.). Petition by William M. Maloy, in his own right and as administrator of Colin McLean, deceased, and others, for the issue of a writ of attachment for costs against George McLean and Josephine Dali, which was granted. Erom a decree rendered upon a motion to quash the attachment, both petitioners and respondents appeal. Eeversed on petitioners’ appeal and affirmed on respondents’ appeal.

Appeal. from the Circuit Court for Dorchester County (Bailey and Due®, LL). Criminal proceeding against Robert Pritchett. From the judgment and sentence, defendant appeals.

). Petition by Benjamin Fine for an abatement of tbe purchase price of property sold to said petitioner by Benjamin Beck and Harry hi. Benzinger, Trustees. From an order dismissing the petition, petitioner appeals.

). Bill by Thomas Hughes, Administrator with the will annexed of George E. Craig, deceased, against Mary W. Craig, Yarcissa B. Craig and others. From a decree in favor of said Yarcissa B. Craig, the other defendants appeal.

). Petition for mandamus by Robert L. Graham and others against Charles 3>. Gaither, Police Commissioner of Baltimore City. E'rom an order denying the writ, petitioners appeal.

<p>Specific Performance- — -Incomplete Agreement — Mandatory ” Injunction.</p> <p>In a suit for the specific performance of an alleged contract between owners of adjoining tracts, for the extinguishment by releasés of certain mutual -easements in parts of the two tracts, constituting a reserved area, held that as to the location of a new right of way for use by both parties, which was an essential of the alleged contract, no agreement had been reached, and consequently specific performance must be refused. p. 356</p> <p>A court of equity will not specifically enforce an agreement unless it is definite and certain in all its provisions. p. 356</p> <p>Where the removal of structures, erected by one of two adjoining owners on a right of way reserved for use by such owners, would injure the owner who erected it to an extent wholly disproportionate to the benefit which might enure to the other owner from such action, a mandatory injunction will not be issued at the suit of the latter to compel the removal of such structures. p. 357</p> <p>The owner of land to which there is appurtenant a right of .way over adjoining land cannot convey a right of way for railroad purposes, to a stranger without any interest in the land,, this involving' an additional servitude on the adjoining land.</p> <p>p. 358</p>

<p>Unfair Competition — Trade Secret — Laundry Route.</p> <p>The list of customers on a “laundry route,” being obtainable by a rival concern merely by observation, is not a trade secret, to be protected as such by a court of equity. pp. 361, 362</p> <p>An employee in an ordinary business, on going into business for himself or into the employ of another, should not be enjoined from seeking to do business with friends made by him in the course of a previous employment, merely because he became acquainted with them while so engaged and as a result of such previous employment. p. 362</p> <p>An employer may expressly contract with his employee that the latter shall not, on leaving the employer’s service, solicit business in the same line from the customers of the employer in a particular territory. . p. 363</p>

<p>Appeal from the Circuit Court for Howard County (Thomas, O. J., Eobsyth and Moss, JJ.).</p> <p>Criminal proceeding against Benjamin Mellon Erom a judgment discharging defendant from the indictment, the State appeals.</p>

<p>Dangerous Highway — Overhanging Tree Limb — Liability of County — Exceptions.</p> <p>In an action against county commissioners on account of injury to cne driving on a public road, caused by the fall of the limb of a tree, held that, in view of tbe evident age of the tree, the marks or evidences of decay thereon, and the position of the limb as overhanging the road, it was for the jury to determine whether the accident was due to the decayed condition of the limb or tree, and whether defendant knew, or by the exercise of reasonable care could have known, of the dangerous condition in fime to have prevented the accident, pp. 377, 378</p> <p>The refusal to direct a verdict for defendant at the close of plaintiff’s evidence is waived if defendant proceeds with his-own evidence. p. 379</p> <p>If no exception was taken to evidence at the time it was admitted, and it was not admitted subject to exceptions, an exception to a subsequent refusal to strike out all the testimony of that witness was too late. p. 379</p> <p>A motion to strike out all the testimony of a witness is properly refused if sonic of such testimony is admissible. p. 379</p>

)). Action by Clarence E. Shipley against E. Ray Myers and Howard E. Myers. Erom a judgment for plaintiff for the sum of five hundred dollars, defendants appeal. The cause was argued before Boyd, C. L, Thomas, Pattisox, TTrxkr, Adfhns, and Offutt, JJ.

<p>Appeal from the Superior Court of Baltimore City (Anbleti, J.).</p> <p>Action by the Maryland Casualty Company against Harry C. -Tones, formerly trading as IT. O. Jones & Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from the Superior Court of Baltimore City (G-orter, J.)</p> <p>Action by Walter E. Brady against Howard W. Brady. From a judgment for defendant, plaintiff appeals.</p>

<p>Specific Performance — Privity—Contract for Sale of Land.</p> <p>A bill for the specific performance of a contract of sale, filed by the vendee, which alleges that an extension of time for performance was granted, should state the length of that extension. ' p. 416</p> <p>One seeking specific performance of a contract of sale must allege that he is both able and willing to perform his part of the contract. p. 410</p> <p>When the vendee named in a contract for the sale of land thereafter contracted to sell the land to another, who in turn resold, the original vendor, not having assented to either of such resales, was not in privity with the last vendee, and consequently the last vendee could not claim specific performance as against such original vendor. p. 417</p>

<p>Specific Performance — Forfeiture Clause — -Liquidated Damages — Election—Diminished Benefit from Contract.</p> <p>That a contract for the sale of land provides that, in ease the vendee fails to perform the covenants and stipulations thereof, all sums paid on account of the purchase money, and all buildings erected on the land, and all crops planted thereon, shall he forfeited to the vendors as liquidated damages, does not preclude the vendor from resorting to a court of equity for relief by way of specific performance. pp. 4-24, 428</p> <p>A provision, in a contract for the sale of land, that in ease of default by the vendee, all cash payments made by him on account of the purchase money, and the buildings and crops on the land, shall be forfeited and retained by tbe vendors as liquidated damages for the breach, and the contract shall he void, is for tbe exclusive benefit of the vendor, and the vendee cannot, by his own default, put an end to tbe contract. p. 4.24</p> <p>While specific execution is a matter not of absolute right in die party, but of sound discretion in tbe court, yet if a contract respecting real property is in writing and is certain and fair in all respects, for an adequate consideration, and capable of being performed, it is as much a matter of course for a court of equity to decree specific performance thereof as it is for a court of lav/ to give damages for its breach. p. 425</p> <p>That the vendors instituted suit to obtain an injunction restraining tbe vendee from taking possession of the property sold, in violation of tbe express provision of tbe contract of sale, did not involve an election on their part not to demand performance of the contract, the vendors’ agent having informed the vendee, a few days previously, of their readiness to execute the. deed for the property, and tendering such deed a few days later. pp. 425, 426</p> <p>Misrepresentations, to constitute a defense to a suit for specific performance, must have been relied on by the defendant.</p> <p>p. 426</p> <p>If the contract was, at the time at which it was-entered into, certain, mutual, and fair in all its parts, and for an adequate consideration, it is immaterial that, by force of subsequent circumstances, it has become less beneficial to one party, unless such change is in some way the fault of the party seeking its specific execution. p. 426</p>

<p>Appeal from the Baltimore City Court (Sopeb, O. J.).</p> <p>Action by Charles H. Steffey, Incorporated, against John S. Bridges. From a, judgment for defendant, plaintiff appeals.</p>

<p>Appeal from the Superior Court of Baltimore City (Ambler, J.).</p> <p>Action, by Shain E. Baitary against Josephine E. Smith and. Helen E. Smith. From a judgment for the first named defendant, plaintiff appeals.</p>

<p>Appeal from the- Superior Court, of Baltimore- City ( Ambush., J.).</p> <p>Action by Abraham Gerber and Bernard Land, co-partners, trading as the Eastern Skirt Company, against the Aetna Casualty & Surety Company of Hartford, Connecticut. From a judgment for plaintiffs, defendant appeals.</p>

<p>Agency — Apparent Authority — Evidence—Declarations of , Other Agent — Similar Transactions.</p> <p>On an issue as to whether one to whom defendant had sold a number of suburban lots, out of a tract of land in course of development by defendant, had, in view of the circumstances, including the grant of permission to use defendant’s branch office near the property, apparent authority to represent defendant for the purpose of sales and receipt of purchase money, held that the evidence was sufficient to go to the jury.</p> <p>pp. 452-453</p> <p>An agent cannot, by unauthorized statements as to the agency of another person for the same principal, subject the latter to liability for the acts of such other person. p. 452</p> <p>That, after one, who had contracted to purchase lots from defendant, and had resold three of such lots, with a contract with each purchaser to build a house thereon, defaulted in his contracts as to the houses, defendant built houses for two. o£ the purchasers and repaid them the amounts previously paid by them to the defaulting contractor, did not show that such contractor was the agent of defendant, so as to impose liability on the latter for sums paid to such contractor by the third purchaser on account of the house to be built for him.</p> <p>pp. 452, 453</p> <p>That defendant, while denying liability to plaintiff for the acts of another, offered to take measures looking to the possible reimbursement of plaintiff for the loss caused by such other’s acts, did not show that such other was his agent. p. 453</p> <p>The question whether the act of an alleged principal is a ratification of a supposed agency depends upon his intention, and when the act relied on to show ratification is equally consistent with a purpose to the contrary, an intent to ratify is not ordinarily implied. p. 453</p>

Mandamus proceeding by Clinton J. Yerkes against David G. Black, and others, constituting the Board of Supervisors of Elections of Cecil County. From an order dismissing the petition for mandamus, petitioner appeals.

). Action by George J. Turner and W. D. Nelson Thomas, trading as Turner & Thomas, against Howard S. Schwarz and Allen Schwarz, trading as William Schwarz & Sons. From an order granting a motion, by Harry N. Baetjer, trustee for creditors of said defendants, to quash a writ of attachment issued in behalf of plaintiffs, plaintiffs appeal.

Appeals from the Circuit Court for Oarrcjll County (Moss, L). Two actions by the First Rational Bank of Union Bridge, Maryland, against W. Scott Wolfe and Meda A. Wolfe, bis wife. From an order in the one case, reducing a judgment by confession against defendant Meda A. Wolfe, both plaintiff and said defendant appeal, and from an order in the other ease, striking out a judgment by confession against said Meda A. Wolfe, plaintiff appeals.

J.,). Action by Edwin Sindell against the Goldman & Freiman Bottling Company, Inc., on account of personal injuries. From a judgment for plaintiff in the sum of four hundred dollars, defendant appeals. The granted prayers of defendant were as follows : Defendant’s Fourth Prayer.

Appeal .from the Circuit Court for Allegany County, in Equity (IlEHDERSOH, J.). Bill by Thomas H, Kimmell and Howard Springer, trading as Springer & Kimmell, and others, against the Mayor and. Commissioners of Westernport, and Charles F. Peters, .Bailiff. From a decree for defendants, plaintiffs appeal.

). Attachment on a judgment in favor of William E. Wood Company against John T. West. Prom an order refusing to strike out a judgment of condemnation, the defendant appeals.

<p>Appeal from the Circuit Court for Montgomery County, In Equity (Peter, J.).</p> <p>Bill by Annie T. Lewis against William T. Lewis to reform a deed. From a decree for defendant, plaintiff appeals.</p>

Mechanic’s lien proceeding by William A. Morse against C. Paul Eay, Junior, and Lee M. Eay, trustees under the last will and testament of Chester P. Eay, deceased,, and others. From a judgment for plaintiff, defendants appeal.

). Action by George Goeb, Jr., infant, suing by his father and next friend, George Goeb, Sr., against the East Baltimore Transfer Company. Erom a judgment in favor of plaintiff for five thousand dollars, defendant appeals.

). Petition by Charles Raith, as purchaser at foreclosure sale, against John Holt Richardson, trustee, seeking to be relieved from the payment of expenses on the property purchased, and interest on the balance of the purchase money, from the day of sale to the day of settlement. From an order dismissing the petition, petitioner appeals.

<p>Appeal from the Criminal Court of Baltimore City (Dobles, J.).</p> <p>Criminal proceeding against May Conaway. Ffom a judgment of imprisonment, defendant appeals.</p>

). Proceeding by Joseph Hampson, Jr., assignee of Annie E. White, for the sale of property under a mortgage executed by Laura Oockey and Samuel B. Oockey, her husband. From an order overruling exceptions to the sale, said mortgagors appeal.

). Proceeding by the Baltimore Trust Company, Trustee, against the Canton Com Products Company, for the sale of certain property under a mortgage. From an order sustaining the exceptions of Morris Schapiro to the ratification of' a sale to him, said Trust Company appeals.

be, J.). Bill by Henry Maurice Talbott against The Laurel Building Association of Prince George’s County, and others, to restrain a sale under a mortgage and the publication of notice of the sale. Erom a decree for defendants, plaintiff appeals.

<p>Appeals from the Circuit Court of Baltimore City (Heuis-LER, J.).</p> <p>Bill by Kellie H. Maclellan and Stanley Raymond Maclellan, executors of Harry H. Maclellan, deceased, against William T. Larkin, The Lakeview Building Company, John A. Fox, Charles L. Cunningham, Monroe Schmidt, and William H. Williams. From the decree rendered, said defendants take separate appeals. Affirmed in part and reversed in part.</p>

<p>Survival of Actions — Personal Injuries — Alienation of Affections.</p> <p>Code, art. 75, see. 25, providing that certain named classes of actions shall not abate by the death of either or any of the parties to such action, applies only to actions already instituted in the lifetime of the alleged wrongdoer. p. 596</p> <p>Code, art. 75, sec. 26, providing that no action brought to recover damages for injuries to the person caused by negligence or default shall abate by reason of the death of the plaintiff, applies only to the case of an action already instituted.</p> <p>p. 597</p> <p>An action on account of the alienation of a wife’s affections is an action for injuries to the person, within the exception in Code, art. 93, sec. 104, providing that executors and administrators may he sued “in any action (except for slander and injuries to the person) which might have been maintained against the deceased.” p. 597</p>

<p>Action by Josephine Ensminger, by her mother and next friend, Lida Ensminger, against Max Fleisher, for false imprisonment. From a judgment for plaintiff, defendant .appeals.</p> <p>The granted prayers of the plaintiff were as follows:</p> <p>First Prayer. — The jury is instracted that any deprivation of liberty of another, without his consent for any length of time, whether it be by actual violence, threats or otherwise, constitutes an imprisonment within the meaning of the law.</p> <p>Second Prayer. — The plaintiff prays the court to instruct the jury that if they find from the evidence that the plaintiff was on the first floor of the store of the defendant in Hagerstown as a saleslady for said defendant, and did then and there sell some hair nets to a customer or customers for twenty cents, and further find that the plaintiff put said twenty cents in the outside pocket of her apron she was then and there wearing, if the jury so find, and further find that at the time she sold said hair nets to said customer or customers, another customer was waiting there for the purpose of having the plaintiff wait upon her as such saleslady, and further find that said plaintiff put said twenty cents in her said apron pocket for the purpose of waiting on said customer more quickly, and further find that it was the plaintiff’s intention after she had waited on said customer, to then put said twenty cents in the cash register of said store, if the jury so find, and further find that before she had so put said twenty cents in the cash register she was notified by the defendant, or his agent and servant at defendant’s request, to come to the defendant’s office on the third floor of said store building, and further find that she was accompanied to the defendant’s office on the third floor by said agent or servant of the defendant, and further find that when the plaintiff arrived at said office of the defendant on said third floor of said building and entered the same, the door to said office was closed by said defendant, or his agent and servant, and further find that the defendant then and there charged the plaintiff with stealing money, silk stockings or any other property from the defendant, if the jury so find, and further find that the defendant directed the plaintiff to go to the cloak room in said building and get her pocketbook from her coat and bring the same to his said office, and further find that the plaintiff, in response to said request, did go to said cloak room and get her pocketbook, and that at said time she was accompanied to said cloak room by the agent and servant of the defendant, at the defendant’s request, if the jury so find, and further find that when the plaintiff returned to the defendant’s office with said pocketbook, the plaintiff opened said pocketbook and showed the defendant the money therein, if the jury so find, and further find that the defendant then and there said that he guessed this Was also his money, and further find that the plaintiff remained in said office for some time before going to her duties as saleslady aforesaid, if the jury so find, and further find that while said plaintiff was in said office of the defendant, the defendant used rough, harsh and unbecoming language and conduct to and towards the plaintiff and told her she was a thief, if the jury so find, and further find that, owing to the language and manner of the defendant then and there used and shown, and all the circumstances existing, a reasonable person of the tender years of the plaintiff would have been reasonably led to believe and understand, and that the plaintiff was then and there reasonably led to believe that force would bo used to compel her to go to said cloak room and get her pocketbook or to remain in said office unless she complied with the request of the defendant to go to said cloak room or remain in said office, and that as a consequence thereof she did go to said cloak room and get her pocketbook or did remain in said office, then their verdict must be for the plaintiff.</p> <p>Third Prayer. — The plaintiff prays the court to instruct the jury that if they find from the evidence that the plaintiff was on the first floor of the store of the defendant in Hagerstown as a saleslady for said defendant, and did then and there sell some hair nets to a customer or customers for twenty cents, and further find that the plaintiff put said twenty cents in the outside pocket of her apron she was then and there wearing, if the jury so find, and further find at the time she sold said hair nets to said customer or customers, another customer was waiting there for the purpose of having the plaintiff wait upon her as such saleslady, and further find that said' plaintiff put said twenty cents in her apron pocket for the purpose of waiting on said customer more quickly, and further find that it was the plaintiff’s intention after she had waited on said customer to then put said twenty cents in the cash register of said store, if the jury so find, and further find that before she had so put said twenty cents in the cash register she was notified hy the defendant, or his agent and servant at defendant’s request, to come to the defendant’s office on the third floor of said store building, and further find that she was accompanied to the defendant’s office on the third floor by said agent and servant of the defendant, and further find that when the plaintiff arrived at said office of the defendant on said third floor of building- and entered the same, the door to said office was closed by said defendant, or his agent and servant, and further find that the defendant then and there charged the plaintiff with stealing money, silk stockings or any other property from the defendant, if the jury so find, and further find that the defendant directed the plaintiff to go to the cloak room in said building and get her pocketbook from her coat and bring the same to his said office, and further find that the plaintiff, in response to said request, did go to said cloak room and get her pocketbook, and that at said time she was accompanied to said cloak room by the agent and servant of the defendant, at the defendant’s request, if the jury so find, and further find that when the plaintiff returned to the defendant’s office with said pocketbook the plaintiff opened said pocketbook and showed the defendant the money therein, if the jury so find, and further find that the defendant then and there said that he guessed this was also his money, and further find that the plaintiff remained in said office for some time before going to her duties as saleslady aforesaid, if the jury so find, and further find that while said plaintiff was in said office of the defendant, the defendant used rough, harsh and unbecoming language and conduct to and towards the plaintiff, if the jury so find, and further find that while the plaintiff was in said office of the defendant the defendant told the plaintiff that she was a thief and that he could have her arrested, if the jury so find, and further find that, owing to the said language and conduct of the defendant then and there used and shown and all the circumstances then and' there existing, a reasonable person of the tender years of the plaintiff would have been reasonably led to believe and understand that she could not leave the said office of the defendant at that time without his permission, without being (hen and there arrested upon the charges then and there made by the defendant, if the jury so find, and further find that the plaintiff did at that time and thereby reasonably believe and understand that if she attempted to leave said office of the defendant at that time without his permission she would then and there be arrested for the charges there made against her by the defendant, if the jury so find, and further find that the plaintiff remained there because she feared such arrest, if the jury so find, and further find that after the lapse of some time the defendant said to the plaintiff, “You can now go,” or words to that effect, and further find that the plaintiff did not steal anything from the defendant, then their verdict must be for the plaintiff.</p> <p>Fourth Prayer.- — If the jury find for the plaintiff, and further find that said alleged wrongs to the plaintiff were inflicted maliciously or wantonly or with circumstances of contumely and indignity, then they may award such damages as will not only compensate the plaintiff for the wrong and indignity she has sustained in consequence of the defendant’s wrongful act, but they may also award exemplary or punitive damages as a punishment to the defendant for such acts.</p> <p>The defendant’s prayers were as follows:</p> <p>First Prayer. — And the defendant prays the court to instruct the jury that under the pleadings in this case there is no evidence legally sufficient to entitle the plaintiff to recover and their verdict should be for the defendant.</p> <p>Secojid Prayer. — The defendant prays the court to instruct the jury that unless they find from the evidence that the defendant said to the plaintiff, “I could have you arrested,” or words to that effect, there is no evidence in this case legally sufficient to entitle the plaintiff to recover under the pleadings and their verdict should be for the defendant. And to further instruct the jury that the burden of proof is upon the plaintiff that the defendant did say such words or words to that effect to the plaintiff.</p> <p>Third, Prayer. — The jury is instructed that there is no evidence in this case legally sufficient to establish that the defendant, prior to the time, the defendant said to the plaintiff, “I could have you arrested,” or words to that effect, if the jury shall find that the defendant did say such words, or words to that effect to the plaintiff, illegally restrained or falsely imprisoned the plaintiff.</p> <p>Fourth Prayer. — The defendant prays the court to instruct the jury that if they believe from the evidence that the plaintiff was satisfied and willing to come to- and remain at the office of the defendant, then' at the request or direction of the defendant was satisfied and willing to go with the witness Mundey and to get her pocketbook, and was then satisfied and willing to return to and remain at the office of the defendant, then the plaintiff is not entitled to recover under the pleadings in this case, unless the jury further find that the plaintiff was satisfied and loilling to do any or all such things for the reason that she thought that if she did not, she would either then and there he arrested or that the defendant would use, or cause to he used, force to require her to do them. (Modified by the addition of the words in italics.)</p> <p>Fifth Prayer. — The defendant prays the court to instruct the jury that if they shall find from the evidence that the plaintiff on the 15th day of May, 1920, employed by the defendant in the department store conducted by him in Hagerstown, if the jury shall find the defendant conducted such store, as one of the salesladies therein, and shall further find that under the rules of the defendant, the plaintiff was required to ring up on a cash register provided for that purpose, the amount of each and every sale made by her, and further find that during the evening of the said 15th day of May, the plaintiff as such employee sold two hair nets and received from a customer or customers therefor twenty cents, and shall further find that the plaintiff did not ring up the said amount on the cash register, hut placed it in her apron pocket, and shall further find that the defendant saw the said actions of the plaintiff, then the defendant had reasonable ground to think that the plaintiff intended to appropriate to her own use the said twenty cents, and the jury may take into consideration the said facts in mitigation of damages, even though the jury should find for the plaintiff.</p> <p>Sixth Prayer. — -The defendant prays the court to instruct the jury that if they shall find from the evidence that the plaintiff received the sum of twenty cents from the sale of certain articles of merchandise of the defendant, sold by her as his employee, if the jury shall so find, and did not ring up and place the same in the cash register, as she was required to do under the rules of the defendant, if the jury shall so find, but placed the same in her apron pocket, and shall further find that the defendant saw the said actions of the plaintiff, then the defendant had the right to require the plaintiff to come to his office and to question her and to detain her a reasonable time until an investigation could be made, and unless they shall find from a preponderance of all the evidence that the defendant detained or restrained the plaintiff for a longer period of time than was reasonably necessary for an investigation to be made, then under the pleadings their verdict should be for the defendant (modified as follows), but the jury is further instructed that if the defendant accomplished such detention or restraint by force or show of force or any other mea,ns that induced the plaintiff acting as a reasonable person of her years to believe that force would be used to accomplish such detention and restraint, then they cannot find for the defendant under this prayer.</p> <p>Seventh Prayer.- — The defendant prays the court to instruct the jury that if they shall find from the evidence that the plaintiff was on or about the 15th day of May, 1920, employed by the defendant in the department store conducted by him in Hagerstown, if the jury shall find the defendant conducted such store, as one of the salesladies therein, and shall further find that under the rules of the defendant, the plaintiff was required to ring up on a cash register provided for that purpose the amount of each and every sale made by her, and shall further find that during the evening of the said 15th day of May, the plaintiff sold certain articles and received from the customer therefor twenty cents, and shall further find that the plaintiff did not ring up the said amount on the cash register, but placed it in her apron pocket, and shall further find that the defendant saw the said action on the part of the plaintiff, then the defendant was justified in sending for the plaintiff and requesting her to come to his office, and if the jury shall further find that the defendant did so send for the plaintiff and that the plaintiff did then go to the office of the defendant and while there acknowledged to the defendant that she did make the said sale and did not ring up the amount, but placed the money received by her therefor in her apron pocket, then the jury is instructed that the defendant was justified in requesting or directing the witness Mundey, another employee of the defendant, if the jury shall so find, to go with the plaintiff to her locker in the store of the defendant, if the jury shall find the plaintiff had such locker, and to see what the plaintiff had therein, and the jury is further instructed that then, even if they find that the defendant did so send for the plaintiff and did so request or direct the said Mundey and the said Mundey did in pursuance thereof, go with the plaintiff for the purpose of seeing what the plaintiff had in the said locker and then returned with her to the office of the defendant, the said acts or any of them on the part of the defendant did not constitute an assault upon or a false imprisonment of the plaintiff and they cannot find a verdict for the plaintiff for or on account of the said acts or any of them.</p> <p>Eighth Pvwyer. — The defendant prays the court to instruct the jury, that if they shall find from the evidence that the plaintiff was on or about the 15th day of May, 1920, employed by the defendant in the department store conducted by Mm in Hagerstown, if the jury shall find the defendant conducted such store, as one of the salesladies therein, and shall further find that under the rules of the defendant the plaintiff was required to ring up on a cash register provided for that purpose, the amount of each and every sale made by her, and shall further find that during the evening of the said 3 5th day of May, the plaintiff sold certain articles and received from the customer therefor twenty cents, and shall further find that the plaintiff did not ring up the said amount on the cash regitser, but placed in her apron pocket, and shall further find that the defendant saw the said action on the part of the plaintiff, then the defendant was justified in sending for the plaintiff and requesting her to come to his office.</p> <p>Ninth Prayer. — The jury is instructed that in order to entitle the plaintiff to recover under the pleadings in this case, they must believe from the evidence either that the defendant restrained the person of the plaintiff by force or that the plaintiff had reasonable grounds to apprehend that the defendant would use or cause to be used force upon or against her if she refused to do as requested or directed by him. And the jury is further instructed that the burden is upon the plaintiff, to show by a preponderance of all the evidence that the defendant did restrain her by force or that there was, in fact, a reasonable ground of apprehension on her part that the defendant would resort to force if she refused to do as requested or directed by him, and unless they do believe from a preponderance of all the evidence that the defendant did restrain the person of the plaintiff by force, or that the plaintiff believed and had reasonable grounds for believing that the defendant would use or cause to be used force upon or against her to compel her to do what he requested or directed lier to do, their verdict should be for the defendant.</p> <p>The defendant’s special exception to plaintiff’s second prayer was as follows:</p> <p>The defendant especially objects and excepts to the granting of the plaintiff’s second prayer as modified by the court, for the reason that there is no evidence in the ease legally sufficient to enable the jury to find that the plaintiff believed, or had reasonable grounds to believe, that the defendant would then and there use force upon her if she did not comply with the requests or directions the jury shall find the defendant made of or gave to her.</p> <p>The eause was argued before Boyd, O. J., Briscoe, Thomas, Pattison, Urner, Stock-bridge, Adkins, and Oeeutt, JJ.</p>

<p>Workmen's Compensation — Dependent Dying After Award— Rights of Personal Representative.</p> <p>In the absence of a specific statutory provision to the contrary, an award to one as having been wholly dependent for support on a deceased employee, vests in such dependent when the award is made, so that, in case of the death of the dependent, his or her personal representative is entitled to the balance, if any, remaining unpaid.</p>

<p>Appeal from the Circuit Court of Baltimore City (Bond, J.).</p> <p>Bill by Charles J. Dobler against the Mayor and City Council of Baltimore, and August E. Ohristhilf, Highways Engineer. From an order granting a preliminary injunction, defendants appeal.</p>

<p>Criminal Law- — Cross-Examination of Defendant — Other Crimes — -Receiving Stolen Goods — Evidence — Harmless Error.</p> <p>One accused of crime, who volunteers to meet the charge against him by testifying in Ms own behalf as to that charge, cannot be compelled to testify on cross-examination as to another crime which is in no way connected with that for which he is beiug tried, and which the State would not be permitted to prove by other witnesses. pp. 650, 651</p> <p>That defendant, when sought to be cross-examined as to another crime committed by Mm, makes no formal claim of privilege, is immaterial, if it is apparent from Ms protest against sucdi examination that he is trying to protect himself.</p> <p>p. 651</p> <p>On a prosecution for receiving a stolen article, the admission of evidence that the person from whom, defendant received the article had stolen other articles from the same store held to be, although erroneous, not prejudicial, defendant not being charged with receiving any of such other articles, and they having been stolen long after the taking of the article which defendant was charged with receiving. p. 653</p> <p>Evidence as to other articles subsequently taken by the thief to the house from which defendant obtained the article in question, in connection with which other articles, however, defendant was not accused of any crime, was inadmissible, p. 653</p>

). Action by Henry H. Wood against the Standard Wholesale Phosphate Company, also doing business under the name ■of the Standard Guano Company. From a judgment for defendant, plaintiff appeals. The causé was argued before B'oyd, C. J., Bets cok-, Thomas, IJrwer, Stocicbridge, Adkiws, and Ofeutt, JJ.

<p>Appeal from the Circuit Court No. 2 of Baltimore City f Stump, J.).</p> <p>Bill by Ida I). MeCleary against Standish MeCleary. From a decree for plaintiff, defendant appeals.</p>

y, «J7). Action by Thomas Fisher against the Forest Hill Permanent Building Association and others to recover the amount of a loan agreed to be made to it by defendant association. From a judgment for plaintiff, defendant association appeals.

<p>Bill of Exceptions — Transmission of Record — Automobile Injuring Pedestrian — Contributory Negligence.</p> <p>When the appellant has prepared the bills of exception in good faith, and presented them to the court within the time allowed, that, as the result of error in their preparation, or a controversy as to what they shall contain, time is required for consideration by the court, necessitating delay in signing them, does not prejudice the appellant. pp. 675, 676</p> <p>Delay in transmission of the record, resulting from a delay on the part of the court in signing the exceptions, does not deprive the appellant of the right of appeal. pp. 675, 676</p> <p>The action of the trial court on the prayers submitted at the conclusion of the evidence is regarded as a single ruling, to be made the subject of one bill of exceptions. p. 676</p> <p>One is not negligent, as a matter of law, in walking on the macadamized part of the highway, and whether plaintiff, struck by defendant’s automobile while so doing, was guilty of contributory negligence, is a question for the jury. p. 680'</p>

<p>Broher’s Commissions — Sale of Land.</p> <p>In an action to recover commissions on a sale of real estate,, instituted by one to whom, with others, defendant had casually mentioned his willingness to pay commissions to any person who might effect a sale of his property, held that a verdict should have been directed for defendants by reason of lack of evidence that the sale was accomplished as a result of plaintiff’s efforts or negotiations.</p>