Volume 141 — Maryland Reports

). Petition by James W. Seaman, filed in the cause of James W. Seaman et al. vs. George W. Seaman et al., praying the passage of an order directing the distribution of purchase money arising from the sale of certain property under decree of court in said cause. From an order dismissing such petition, petitioner appeals. The cause was submitted on'briefs to Boyd, C. J., Bbiscoe, Tiiojias, Pattihoy, Ftiykr., StockBiiincE, Adkia's, and Ofeutt, JJ.

<p>Specific Performance — Indefinite Contract.</p> <p>Specific performance will not be granted unless the contract is free from all shade or color of ambiguity.</p> <p>A contract for the sale of land which provides that part of the j)urchase money shall be paid by a building association loan, to be obtained by the purchaser, and contains an undertaking by the vendor to accept a second mortgage as security for the unpaid balance of the purchase money, but states the amount of neither the loan to be secured nor of the second mortgage, is too indefinite to be enforced by a court of equity.</p> <p>Conversations between the parties to a contract of sale, leading up thereto, are not admissible to supply omissions or cure defects therein.</p> <p>A contract for the sale of land, providing that the unpaid balance of the purchase money be paid, $700 a year in monthly installments, and further providing that a loan should be secured by the purchaser, and the balance carried by the vendor on second mortgage, without stating the amount of the loan or mortgage, did not present a case of alternative provisions, one of which could be enforced in ease the other was void for uncertainty.</p>

<p>Contract for Lease — Evidence as to Acceptance.</p> <p>In a suit for the specific performance of an alleged contract to make a lease to plaintiff, held that the evidence failed to show an acceptance by plaintiff of defendant’s offer within the time named therein.</p>

<p>Specific Performance — Mistake.</p> <p>Where defendant’s agent, in quoting the price of lots to plaintiff, made a mistake which would have resulted iu the sale of lots listed at $3,000 for the sum of $2,200, and made a contract on that basis, held that the mistake having been immediately discovered and made known to plaintiff the same day, and before he could possibly be prejudiced, he was not entitled to specific performance.</p>

<p>Recording Statute — Reservation of Lien — Creditors Without Notice — Preference by Bankrupt — Replevin—Identification of Goods — Judgment on Appeal.</p> <p>A contract, under which a firm furnished cans and other supplies to a packer, by which the firm retained title to such supplies until payment of the purchase price, and by which the firm was also given a lien on the cans and their contents, when filled with produce obtained from other sources, as security for any balance due on their sales account or for advances of money, was within Code, art. 21, sec. 53A, requiring a sale or contract for the sale of goods, wherein the title or a lien thereon is reserved until payment of the whole or part of the price, to be recorded in order to be valid as against third persons without notice, if possession is to be delivered to the vendee.</p> <p>Creditors trusting the vendee in ignorance of the vendor’s secret reservation of interest in the property committed to the vendee’s apparent ownership, are “third persons without notice” within the protection of Code, art. 21, sec. 53A, requiring the record of a contract of sale reserving title in the vendor as against such persons, if possession is delivered.</p> <p>Judgment creditors holding executions returned unsatisfied are entitled to challenge, as invalid under Code, art. 21, sec. 53A, a lien or title dependent upon an unrecorded agreement o£ which they were unaware when their claims were contracted.</p> <p>Since the Bankruptcy Act, sec. 47a, vests the bankruptcy trustees with all the rights, remedies, and powers of a judgment creditor holding an execution returned unsatisfied, as regards all property not in the custody of the bankruptcy court, such trustees have the right to oppose an unrecorded reservation of title in a contract of sale of such property in behalf of creditors without notice thereof.</p> <p>Since a replevin suit against a bankrupt, which was instituted shortly before the filing of the petition in bankrux>tcy, and under which possession of goods of the bankrupt was obtained, would, if successful, secure a preference for the plaintiffs therein by the appropriation to their claim of a part of the bankrupt’s assets, such a suit is within the prohibition against preferences, though it was authorized by an existing agreement, between the bankrupt and the plaintiff therein, that the latter might take the former’s goods by replevin if the former should become embarrassed financially, and the bankruptcy trustee could, in behalf of other creditors, defend against such a suit instituted a few days before the filing of the petition in bankruptcy.</p> <p>One claiming a lien on material belonging to a bankrupt, under an unrecorded contract, is in the position of one claiming under an unrecorded chattel mortgage or bill of sale, within Code, art. 21, secs. 43, 50, requiring such a mortgage or bill of sale to be recorded, in order to be effective as to third persons, and the bankrupt trustee may, under the Bankruptcy Act, sec. 60b, assert the invalidity of such contract as regards creditors without notice, such section invalidating a preferential transfer by the bankrupt, if made within four months before the filing of the petition in bankruptcy, or if recorded in that time, when required by law to be recorded.</p> <p>Though the bankruptcy trustee may, as against an unrecorded transfer by the bankrupt, assert a claim to the property in behalf of creditors without notice of the transfer, such transfer is effective in favor of the claimant thereunder, as against creditors who gave credit with notice thereof.</p> <p>In an action of replevin for certain cans, as having been sold by plaintiff to a packer of canned goods, held tbat the evidence of the identity of the cans replevied with those sold by plaintiff was sufficient as to part only thereof.</p> <p>That cans furnished to a packer by plaintiff, under a contract reserving title in the latter, were mingled by the packer with cans obtained by him from other sources, did not entitle the plaintiff to the possession of such other cans, as against the rights of third persons.</p> <p>Where, in replevin, the controlling facts are undisputed except as to a question which is concluded by the verdict, and the value of the property is shown by the record, and is separable into the amounts to which the various parties are entitled, the appellate court may, under Code, art. 5, secs. 15, 22a, enter judgments for such amounts, without a retrial.</p>

). Action of replevin by William E. Robinson and Alphonso P. Robinson, trading as W. E. Robinson .& Company, against William R. Keel. Said Keel having been adjudicated a bankrupt, James E. Ellegood and others, named as his trustees in bankruptcy, intervened. Prom a judgment for plaintiffs, said trustees appeal.

). Action by the State of Maryland, for the use of Violet M. Ochring and others, widow and children of Theodore Oehring, against Carrol! R. Passapae. Efom a judgment in favor of the equitable plaintiffs, defendant appeals.

<p>Negligence — Workman on Railroad, Track — Corporate Entity — Railroad on Steel Plant — Workmens Compensation — -Instructions.</p> <p>Where the crew of a train, carrying materials in connection with defendant’s steel works, knew that employees of a contractor were liable to be at work on the track, but nevertheless started the train backwards with no one on the rear thereof to give notice of its approach, and deceased was on the track between the train and the conductor when the latter gave the signal to start, held that there was evidence of negligence sufficient to go to the jury.</p> <p>One who, while in charge of men working on a railroad track, was killed by a freight train which, after standing still for about thirty minutes, was moved backwards without any person on the rear thereof to warn of its approach, held not guilty of contributory negligence, he having reason to assume that the train would not pass that spot without warning being given, and that the conductor would not give a signal for the train to move until he had seen that there was no one on the track.</p> <p>The fact that there was no special exception to plaintiff’s prayer directing a verdict for plaintiff if the jury found that the accident was caused by the negligence of defendant’s employees in operating the train which ran over deceased, did not prevent a review of the action of the lower court in refusing to direct a verdict for defendant on the ground that those in charge of the train were not defendant’s employees.</p> <p>In an action against a steel company to recover for the death of one killed by a train operated by a railroad company which was controlled by the steel company, held that an instruction was erroneous which told the jury that liability could be imposed on the steel company if deceased was killed by a train being operated by “persons in the employ of or subject to the control of” the steel company, since the persons operating the train might have been in the employ of both companies and not operating the train in behalf of the steel company, and the reference to “control” might lead the jury to think that there could be a recovery against the steel company if it had control of the railroad company by ownership of stock and could for-that reason be said to be in control of the train,</p> <p>That a railroad was built entirely upon the land of a steel company, and that its principal business was the carriage, of materials for such company, which owned practically all of the stock of the railroad company, did not deprive the latter company of the character of a common carrier, it being such by its charter, it operating as such under the supervision of the Interstate Commerce Commission and the State Public Service Commission, and it carrying freight for others than the steel company when desired to do so.</p> <p>That the capital stock of a railroad company, with the exception of a few directors’ shares, stood in the name of a steel company, for the benefit of which the railroad company was organized, and as a plant facility of which it was chiefly operated, did not destroy its separate corporate existence as distinct from that of the steel company, the railroad company having separate yardmaster’s, superintendent’s, and clerk’s offices, its employees being paid their wages out of its own funds, its accounts being kept separately, and it having separate pay rolls.</p> <p>When there is fraud, or some good ground for its action, a court may, in furtherance of justice, go behind the legal entity of a corporation, and treat it and the owners of the capital stock and assets as identical.</p> <p>In an action against a steel company for a death caused by a train operated on such company’s property by a railroad company the capital stock of which was owned by the steel company, held that, under the circumstances, in order to justify a finding against the steel company, the jury should be required to find that the railroad company was merely an instrumentality or adjunct of the steel company, or something to that effect.</p> <p>In an action, hy the employer of one killed in the course of his employment, for the use of the employer’s insurer and the dependents of deceased, against a corporation alleged to have caused the death by negligence, to recover the amount of an award made in favor of such dependents under the Workmen’s Compensation Act, a prayer submitted by plaintiff was erroneous which failed to require the jury to find that an award had been made against the employer and insurer.</p> <p>The Workmen’s Compensation Act does not authorize an employer to, sne for damages resulting to such employer from the failure of another to keep the premises reasonably safe for the employees.</p> <p>Section 58 of the Workmen’s Compensation Act, authorizing an action hy the employer against the person primarily liable for the accident, to recover the amount of any award against such employer, his insurer, or the State Accident Fund, with the proviso that any excess recovered over the amount of the award shall he paid to the dependents, does not authorize an instruction to the jury, in such an action, hy which the dependents are given the total damages sustained by them hy reason of the employee’s death, with an apportionment of the whole amount among them, as in the case of an action under Lord Campbell’s Act.</p> <p>The dependents of the deceased employee being in no case entitled to recover, as against the person primarily liable, more than the excess over the award and the employer’s expenses and costs of action, such person may properly complain of a verdict against him in favor of such dependents for the whole amount of damages sustained hy them.</p> <p>There is nothing in the Workmen’s Compensation Law which permits the dependents of the deceased employee to sue after accepting compensation, and the law does not contemplate their obtaining an award and then in reality suing, although the latter act is done in the name of the employer.</p> <p>That one doing construction work for a steel company, under a “cost plus” contract, was iu effect the ageut of the company, and that the company was, by force of the contract, ultimately to pay the premiums on the employer’s liability insurance taken ont by the contractor, did not relieve the company from liability for the death of an employee of the contractor which was caused by the negligence of the employees of the company.</p>

<p>The cause was submitted to Boyd, O. J., Bexscok, Thomas. Pattisox. Erxfk, Stoctcbutdge, Adkixs, and Offtttt, JM.</p>

<p>The cause was argued, together with that next preceding, before Boyd, C. I., Briscoe, Thomas, Pattisoet, Ureter, Stooicbridgke, and Oeeutt, JJ.</p>

<p>Appeal from the Circuit Court for Washington County (Wagamaw, J.).</p> <p>Crimina] proceeding against William Ward. From a judgment of conviction and sentence, defendant appeals.</p> <p>The cause was argued, together with that next preceding and that next following, before Boyd, O. J., Briscoe, Thoxlas, Pattisow, Fewer, Stocicbridgb, Adiciws, and Oefutt, JJ.</p>

<p>Appeal from the Circuit Court for Washington County (Wagaman, J.).</p> <p>Criminal proceeding against Robert Stevenson. From a judgment of conviction and sentence, defendant appeals.</p> <p>The cause was argued, together with the two next preceding, before Boyd, O. J., Briscoe, Thomas, Pattison, Urner, Stockbridge, Adkins, and Oeehtt, JT.</p>

<p>The canse was submitted on briefs to Boyd, C. X, Briscoe, Thomas, Pattisox, Fewer, Stockbeidge, Adkins, and Opfutt, JX</p>

<p>The causes were submited on briefs to Boyd, C. J., Briscoe, Thomas, Pattisoy, Driver, Stockbridg-e, Amass, and Oeeutt, JJ.</p>