Volume 92 — Maryland Reports

<p>Partnership — Loan of Money by one Partner to Another, Used in Paying Partnership Debts.</p> <p>A note given for a loan of his individual money by one partner to another, to be used by the latter in paying the partnership debts, is valid and enforceable by action at law against the borrower and a co-maker of the note.</p>

), by which it was adjudged, that the property mentioned in these proceedings is owned by Jennie Myers and not liable for the debts of Chew Snebly ; that said Jennie Myers pay into Court the sum of $4,000, to abide the determination of the Court as to the validity of the claim ' of Ray Miller, and that upon her failure to pay said sum into Court within three months, the houses Nos.' 221 and 223 Courtland Street be sold, subject to the mortgages thereon.

<p>Contracts — Mutuality of Obligation — Implied Renewal of Contract of Service for One Year — Presumptions—Evidence.</p> <p>An instrument by which an insurance company agrees to pay a certain commission to an agent for one year constitutes a valid contract, although the agent does not expressly agree to render the services, because in such case the intention of the parties is manifest that there should be a correlative obligation upon the part of the agent.</p> <p>When a written contract provides for the rendition of services by one party for one year and similar services continue to be rendered thereafter, there is an implied renewal of the same contract.</p> <p>Where an insurance company employed an agent for a year and he continued to render similar services after the expiration of the year, the question whether such subsequent services were rendered to the company under a renewal of the original contract or were rendered to the managing agent of the company under a new contract made with him is a question of fact; but since the same services were continued, the presumption is that they were rendered under the original contract, and the burden of proof is on the defendant to show that a new contract was made by the managing agent.</p> <p>The evidence in this case examined and held legally sufficient to authorize the jury to find that services rendered by the plaintiff, to recover compensation for which this action was brought, were rendered for the defendant company under an implied extension of the contract for one year made by it, and were not rendered for the manager of the defendant company under a new contract made with him by the plaintiff.</p> <p>An exception to a granted prayer, on the ground of a lack of evidence legally sufficient to sustain it, will not be considered on appeal, unless the ruling of the Court on this objection appears in the record in a bill of exceptions signed by the trial judge.</p>

<p> Construction of a Devise to a Wife Ufon Conditions Subsequent. </p> <p>By his will, executed in 1877, a testator devised a dwelling-house in the city of Baltimore to his wife, “upon these conditions, first, that she continues to reside in the city of Baltimore, and secondly, that she does not marry again before April 10, 1885.” By a codicil made in 1886 the testator directed that the devisee of a tract of land not in said city should provide a home thereon for his wife in case she should desire it. The testator died in 1887. Held, that the limitation as to time contained in the devise to the wife was intended to apply to* both of the conditions of the devise ; that her estate became absolute after the expiration of the time mentioned, and that she is now authorized to alien the property free from any condition.</p>

<p>When Pendency of One Suit is a Bar to Another — Suit for Partition Not a Bar to a Bill to Foreclose a Mortgage.</p> <p>The pendency of one suit is not a bar to a subsequent suit unless the parties in both suits are the same, the subject matter the same, and the same object is sought to be accomplished in both.</p> <p>A suit pending in the Federal Court for a partition of the land of which A died seized, is not a bar to a bill for a sale under a mortgage of part of said real estate, although the mortgagee is one of the parties to the partition suit, since the subject-matter and object of the two suits are not the same.</p>

<p>Specific Performance— Two Contracts for the Sale of the Same Land— Option to Purchase.</p> <p>When the owner of land has given to one party a valid option to purchase it, which is exercised within the time limited, another party to whom the owner subsequently agrees to sell the same land is not entitled to maintain a bill for a specific performance of his contract, although it was made before the first party declared his purpose to exercise the option.</p> <p>Specific performance of a contract for the sale of land will not be decreed unless so to do is fair and equitable under all the circumstances of the case; nor will it be decreed if the enforcement of the contract between the immediate parties thereto would operate incidentally as a fraud upon others.</p> <p>Defendant made a contract with A by which the latter acquired the option to purchase certain real estate for a designated sum before a certain date. Before the expiration of the option, defendant signed a paper acknowledging the receipt of a sum from the plaintiff as part of the purchase-money for a portion of the same land, which defendant agreed to sell him. Subsequently A notified defendant that he would exercise the option so given to him, and a contract for the sale of the whole property was made between A and the defendant. Upon a bill for the specific performance by plaintiff, the evidence was to the effect that the plaintiff was notified at the time the agreement with him was made that it would be subject to the exercise of the option held by A. Held, that under these circumstances, plaintiff is not entitled to demand specific performance.</p>

<p>Appeal from the Circuit Court for Carroll County.</p>

2, of Baltimore City (Stockbridge, J.), by which it was adj udged that the plaintiff had no claim, legal or equitable, to the funds arising from the policies of insurance mentioned in the proceedings. The cause was argued before McSherry, C. J., Fowler, Boyd, Pearce, Schmucker and Jones, JJ.

<p>Equity Practice — Necessary Exhibits Must be Filed Before Passing Orders on a Bill — Refusal of Mortgagee to Execute Release.</p> <p>The fourth equity rule (Code, Art. 5, sec. 120), directs that no order or process shall be made or issued upon any bill or petition until the same, together with all the exhibits referred to therein, be filed with the clerk of the Court. Upon a bill asking the Court to assume jurisdiction of a trust created by a will and to grant an injunction, an order was passed and the injunction granted before the will was filed as an exhibit. Two days afterwards a petition was filed in the cause alleging that the petitioner had tendered to the defendant, trustee, the amount due under a mortgage to him, but the defendant had refused to execute a release of the mortgage, and had advertised the property for sale. The petition prayed for leave to pay the money into Court, and for an injunction to restrain the sale. No copy of the mortgage was filed with the petition, but the Court passed an order granting the relief asked for. Held, that since both these orders were prematurely passed, without the necessary exhibits being filed, they must be reversed and the cause remanded.</p> <p>If a mortgagee refuses to execute a proper release of. the mortgage upon tender of the amount due, the mortgagor is entitled to pay the money into Court and have a sale of the property restrained.</p>

<p>Time of Vesting and Payment of Legacy — Interest on Legacy Payable in Futuro— Testator in Loco Parentis to Legatee — Property Held in Trust by Executors.</p> <p>When a testator stood in loco parentis to a legatee, and the latter is otherwise unprovided for, interest will be allowed upon the legacy from the death of the testator, notwithstanding the fact that a future time is fixed for its payment.</p> <p>Evidence of an intention on the part of a testator to stand in loco parentis to his legatee may be found upon the face of a will from the nature of its provisions, or in the conduct of the testator and in the circumstances surrounding him and the beneficiary.</p> <p>A testator bequeathed to his three grandsons, infant children of a dedeceased son, certain property, “to be given to my grandsons, orto the survivors or survivor of' them, at such times as my executors may find convenient and in accordance with their best judgment, but in no case before they or either of them shall have reached the age of twenty-one years, to whom (or to the survivors or survivor of them), I also desire my executors to give under the above limitation as to age and time, the sum of $5,000 each.” During his lifetime the testator had contributed a weekly sum towards the support of the grandsons, who were in destitute circumstances. After his death, the guardian of the legatees filed a bill praying that the legacies might be treated as trust funds in the hands of the executors, and that the Court would assume jurisdic ' tion of the trust. An order was passed by consent, describing the executors as trustees and directing them to pay to the guardian of the legatees a certain sum monthly, to be a charge and credit upon the legacies, and the executors filed a bond as trustees. Upon petition of counsel for the guardian asking for the allowance of a fee for their services, an order was passed directing payment of the same out of the income of the funds in the hands of the executors. Upon appeal therefrom, held.,</p> <p>ist. That the legacies given by the testator to his grandsons were vested, and the expression “survivors or survivor of them,” used in thebequest, is to be referred to the time of the death of the testator, and does not operate to postpone the time of vesting.</p> <p>2nd. That the testator stood in loco parentis to the grandsons, who are otherwise unprovided for, and that consequently they are entitled to interest on the pecuniary legacies from the time of testator’s death and to the income of the property specifically bequeathed.</p> <p>3rd. That since the executors had assented to the order of Court directing them to hold the legacies as trustees, they cannot now claim to act as executors, and the order appealed against was properly passed.</p> <p>A testatrix bequeathed “to each of my grandsons, the sons of my de. deceased son G., who may live to reach the age of twenty-one years, the sum of $i,000.” Held, that these legacies are contingent, being given upon the plain condition that each legatee should arrive at the designated age before being entitled to take, and they do not begin to bear interest before the happening of the condition.</p>

<p>Partnership — Purchase of Assets by Surviving Partner — Fiduciary Relation of Surviving Partner — Failure to make Full Disclosure — Valuation of Machinery.</p> <p>A surviving partner in settling the partnership affairs sustains a fiduciary relation towards the representatives of the deceased partner, and a purchase by such survivor of the firm’s assets will not be upheld unless the transaction, if attacked, is shown by him to be fair and equitable. When the surviving partner, purchasing the assets, conceals information relating thereto, which, if it had been communicated, would have prevented the sale from being made on those terms, he will be held to account to the representatives of the deceased partner for the real value at that time of such assets.</p> <p>Defendant, a surviving partner, offered to buy the interest of a deceased partner, in the firm’s assets and submitted to plaintiff, the executrix of the latter, a statement of the firm’s business, together with his proposition. The statement has a valuation of $2,147 on the machinery and fixtures, and the offer was to purchase the merchandise and machinery at a deduction of twenty per cent from the values given in the statement. The books of the firm were not tendered to the executrix for examination, but the statement submitted agreed with the values of the different items on the books except in regard to the machinery. Some time after a sale had been made on the terms proposed, the executrix filed a bill against the defendant alleging that she had accepted his offer in the belief that the statement submitted by him contained a fair valuation of the firm’s property ; that she had subsequently discovered that the machinery, etc., were valued on the firm’s books at $17,848, and asked that the defendant be made to account for the value thereof in excess of the $2,147 already settled for. The evidence showed that the machinery was worth, to anyone wishing to continue the business as the defendant did, at least fifty per cent of its book value. Held,</p> <p>1 st. That the plaintiff, as executrix, was lead to believe that defendant’s statement of the value of the property he proposed to purchase, was made on the basis of the book valuation, from which defendant proposed to deduct twenty per cent; that it was the defendant’s duty, under the circumstances, to render an accurate statement as to the business and property and his failure to disclose the book value of the machinery, was such a concealement as entitles the plaintiff to relief.</p> <p>2nd. That since the evidence establishes that the value of the machinery to the surviving partner was fifty per cent of its book value, the plaintiff is entitled to one half of that amount less the twenty per cent required to be deducted by the proposition of purchase.</p>

<p>Appeal from the Circuit Court for Harford County.</p>

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

<p>Action by Married Woman for Alienation of her Husband's Affections— Evidence.</p> <p>A married woman may maintain an action in her own name against a defendant for alienation of the affection of the plaintiff’s husband and loss of his society and support, under the Act of 1898, ch. 457, which authorizes married women to sue for torts committed against them as fully as if they were unmarried.</p> <p>In an action against a woman for the alienation of the affection of the plaintiff’s husband, evidence that the defendant on different occasions was heard to tell the plaintiff’s husband to leave her house and not to come there again is not admissible, unless accompanied by evidence, showing that this was done before the suit was instituted, and that the defendant made a bona fide effort to keep the husband away.</p> <p>In such action, evidence that the plaintiff had herself been guilty of improper relations with a certain man is admissible in mitigation of damages, whether the plaintiff’s husband had knowledge of the alleged improper relations or not.</p>

<p>Appeals from the Orphans’ Court of Washington County.</p>

<p>The cause was argued before McSherry, C. J., Fowler, Briscoe, Boyd, Pearce, Schmucker, JJ.</p>

<p>Appeal from a decree of the Circuit Court for Anne Arundel County (Revell, J.)</p>

<p>Criminal Law — Qualification of furors — Questions on Voir Dire — Admissibility of Letter to Newspaper to Contradict Witness.</p> <p>Upon impanelling a jury to try certain defendants for unlawful assembly, a juror had testified ®n his voir dire that he had not formed or expressed any opinion as to the guilt or innocence of the parties, and that his mind was free from any prejudice which might prevent him from rendering a proper verdict. Held,</p> <p>ist. That this juror could not be asked by the traversers if he had made up his mind, from what he had heard or read, that there was a riot or unlawful assembly at the time and place mentioned in the indictment, not only because the juror had testified that he was without bias or prejudice for or against the accused, but also because if the juror had formed the opinion that there had been an unlawful assembly, it did not follow that he had an opinion as to the guilt or innocence of certain persons charged with participation therein.</p> <p>2nd. That the traversers were not entitled to ask said question in order to enable them to act intelligently in the exercise of their right to strike names from the panel, because if the question were answered in the affirmative it was immaterial, and if in the negative, the answer would indicate the juror’s belief in the innocence of the defendants, who would then have no ground of complaint.</p> <p>Upon the trial of an indictment for unlawful assembly, one of the defendants having testified in chief, the prosecution offered to contradict him by a printed letter written by him and published in a newspaper in another State. The witness admitted that the printed letter was a substantially correct reproduction of what he had written and that the original was n'ot in his possession. Held, that after these admissions, the letter was competent evidence for this purpose, although the original was not produced nor its loss accounted for.</p>

<p>Upon a motion to strike out a judgment, an agreement of counsel was made providing that the proceedings and testimony in an equity cause to restrain execution on the judgment should be used at the hearing of the motion. On appeal from an order striking out the judgment, there was no bill of exceptions in the record, but the agreement of counsel, together with the testimony and proceedings in the equity cause, were duly set out. Held, that the evidence, upon which the trial Court acted in disposing of the motion, is sufficiently brought before this Court.</p> <p>Where there is a motion to strike out a judgment because irregularly ' entered, the general rule is that if it be stricken out, the lien thereof should be preserved so as to secure the plaintiff from loss in case he afterwards recovers at a trial upon the merits.</p> <p>Defendants executed a single bill to plaintiff for the payment of a certain sum of money which also set forth : “And we do hereby confess judgment for the above sum with interest and costs of suit.” Plaintiff’s attorney filed with the clerk of Court the single bill and an agreement for the entry of a judgment signed by him and attorneys for the defendants, and also an order to docket suit and enter judgment. Judgment was accordingly entered and execution issued. Defendants filed a bill in equity to restrain the execution alleging that the single bill had been obtained by fraud. This bill was dismissed and the injunction .granted thereon dissolved. Defendants then filed a motion to strike out the judgment because obtained by fraud and because entered without authority, the defendants not having assented thereto or authorized any attorney to do so. Code, Art. 26, sec. 6, authorizes a clerk of Court, during recess, to enter a judgment by confession, with the assent of. the parties or attorneys in writing, which shall be filed with the titling, narr., cause of action, etc. Held, that the judgment in this case was regularly entered under the statute, since the assent to the confession of judgment in the cause of action implies an assent to the entry thereof by the clerk, and it makes no difference that the attorneys who assumed to appear for the defendants were without express authority to do so.</p>

<p>Appeal from a decree of the Circuit Court for Carroll County (Reifsnider, J.)</p>

<p>Appeal from a decree of the Circuit Court for Harford County (Watters, J.), dismissing the bill of complaint. The tract of land called “Horner’s Fishery” referred to in the opinion of the Court is indicated on the following map by dotted lines:</p> <p> </p>

<p>Death of Plaintiff in Action for Injtiry Caused by Negligence Pending an Appeal — Injury to Child Playing Under a Car Standing in a City Street — Legal Sufficiency of Evidence.</p> <p>Upon the death of the plaintiff pending an appeal in an action for injury to the person caused by negligence, the suit may be prosecuted by his administrator under Code, Art. 5, sec. 73, and Art. 75, sec. 25.</p> <p>Plaintiff, a boy four years of age, together with two or three other children, was playing alongside of and under three or four'freight cars, which had been standing for about an hour in the middle of a city street. When the cars were started, being moved by horses, the plaintiff, who was then under the rear car, was run over and injured. In an action to recover damages none of the witnesses heard any signal given or saw the horses or the men in charge of the cars before the accident. There was no evidence that the defendant’s servants had knowledge or notice of plaintiff’s perilous position or that it was customary to blow a horn before starting the cars. Held, that the defendant’s servants were not bound to assume that there might be a child under one of the cars and to look there before starting, and that there was no legally sufficient evidence of any negligence on the part of the defendant to take the case to the jury.</p>

). The indictment in this case was as follows : State of Maryland, city of Baltimore, to-wit: The jurors of the State of Maryland, for the body of the city of Baltimore, do on their oath present that George C. Worthington, late of said city, on the eighteenth day of June, in the year of our Lord one thousand eight hundred and ninety-nine, with force and arms, at the city aforesaid, in and upon one Amelia A. Miller, feloniously and willfully did make an assault, and did then…

), sustaining a démurrer to the bill of com- , plaint in this case and dismissing the same. The cause was argued at the April Term, 1900, and was subsequently reargued by order of the Court at the October Term, 1900,before McSherry, C. J., Fowler, Briscoe, Page, Boyd, Pearce, Schmucker and Jones, JJ.

<p>Appeal from a decree of the Circuit Court for Baltimore County (Burke, J.), sustaining a demurrer to the bill of complaint and dismissing the same.</p>

), dismissing the petition of the appellant, filed to compel the appellee to convey to him the ground rent of $325.00 per annum upon his residence, No. 1500 Eutaw Place, in the city of Baltimore.

). Upon the granting of the trial Court’s instruction, which is set forth in the opinion of this Court, the defendants withdrew their prayers, the fifth of which set forth that “If the jury shall find that on or about March - I, 1898, the insurance company gave written notice to the defendants of a regular quarterly assessment of eleven dollars and, one cent levied on and covering all their policies then in force; and shall further find that by' the terms of said notice the…

Appeals from a decree of Circuit Court No. 2, of Baltimore City (Stockbridge, J.), by which it was adjudged that the fund in the case “ be divided into three equal parts, and that one of said three equal parts of said fund be distributed among the next of kin of each of the partners of the firm of S. Smith & Buchanan, to wit, Samuel Smith, deceased, James A. Buchanan, deceased, and William B. Buchanan, deceased, in being on the third day of March, 1899, per stirpes and not…

<p>Appeal from an order of the Circuit Court for Prince George’s County (Merrick, J.) The defendant filed the following plat as an exhibit with his answer:</p> <p> </p>

J.) The jury returned a verdict for plaintiff for $2,000. The Court ordered a new trial to be granted, unless plaintiff remitted $1,000, which was ageeed to, and judgment entered for $1,000.

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

<p>Consolidation of Corporations — Alleged Overissue of Securities to Promoters— Construction of Contract — Specific Performance — Remedy at Law.</p> <p>Plaintiff was the owner of a brewery in Baltimore, and the defendants were the promoters of a consolidation of certain breweries by the formation of a new corporation, called the Maryland Brewing Co., to take over their business. A contract was made between plaintiff and defendants, by which the latter agreed to use their best efforts to effect the proposed consolidation by a given time, and the plaintiff agreed to sell his brewery for $450,000 in cash, $100,000 in bonds and $500,000 in stock, common and preferred of the Maryland Brewing Co. It was provided that the amount of the securities of the new company to be issued should be based upon the annual output in barrels of beer of the constituent breweries. This output was estimated to be 700,000 barrels a year, and it was agreed that if the annual barrelage should be less that then there should be a proportionate diminution in the amount of the securities to be issued. The compensation of the defendants was to consist of all the stock and bonds which should be left after paying the purchase price of the different companies entering the consolidation. It was also stipulated that plaintiff’s son should be employed as a manager of the new company for ten years, and this employment was made a condition of plaintiff’s agreement. Plaintiff conveyed his brewery and received the money and securities mentioned in the contract. A year afterwards plaintiff filed the bill in this case setting forth said contract and the transfer of his property in pursuance thereof, and alleged that the total output of the constituent companies of the Maryland Brewing Co. was not 700,000 barrels per year as had been estimated, but was only 575,000 barrels, and that according to the provision in the agreement relating to the amount of the securities to be issued, based on the annual barrel-age, the total amount of stock and bonds to be issued should have been $11,500,000, whereas in point of fact securities to the amount of $12,803,000 were issued, making an overissue of $1,303,000. The bill alleged that this overissue caused the bonds and stock delivered to the plaintiff for his brewery to be less valuable than they would have been if the contract had been complied with, and prayed that the defendants be required to return to the Maryland Brewing Co. the overissued securities or to pay lor the same in money. Upon demurrer to the bill. Held,</p> <p>1st. That the plaintiff is not entitled to the relief asked for, because the contract is not one proper to be specifically enforced in its entirety by either party ; and plaintiff’s construction of it in the bill is of doubtful accuracy ; also because plaintiff entered into the consolidation by the transfer of his brewery after knowing, or having the means of knowing, that the output of the constituent breweries was less than was estimated in the contract, and has delayed for a year to make any objection, after accepting benefits under the contract and inducing other parties to change their position ; and also because the bill does not allege that the plaintiff is still the holder of any of the bonds and stock issued to him and alleged to have been injuriously affected, or has any present interest in requiring the defendants to transfer the alleged overissue or to pay money to the Maryland Brewing Co.</p> <p>2nd. That the plaintiff is not entitled to compensation in lieu of specific performance since his damages, if any, may be ascertained in an action at law as well as by reference to an auditor.</p>

<p>Appeal from a decree of the Circuit Court of Baltimore City (Wickes, J.), dismissing the bill of complaint.</p> <p>The cause was submitted to the Court on briefs by :</p>

<p>Construction of a Will Providing for Forfeiture of Interest of a Devisee in Case of Alienation— Tax Sale— Trusts — Power of Appointment.</p> <p>Land was devised to a trustee with directions to pay the rents to Charles, a son of the testatrix, for life, and the cestui que trust was vested with a power to dispose of the property by will. Testatrix also provided that in case of any alienation of the interest to which Charles may be entitled, whether such alienation be voluntary or involuntary, by his own act or default or by operation of law, or in case by any other means his rights to said rents or any part thereof shall become vested in any other person, then the trust for the benefit of Charles shall cease, and the trustee was directed to hold the land for the children of Charles, if any were living at the time of such forfeiture of his interest, but if Charles should then have no child, the trustee was directed to hold the land for Eliza, daughter of the testatrix, with power in her to devise the land. During the life of Charles, a part of the land was sold for non-payment of taxes. Eliza died leaving a will by which all her property was given to the appellant, and Charles died unmarried and without issue, leaving a will, by which the above-mentioned land was devised to the appellees. The question in this case was whether the tax sale of part of the land held in trust for Charles caused a forfeiture of his whole interest under the cesser clause, so that the remaining part passed underthe will of Eliza. Held,</p> <p>xst. That the tax sale was not an alienation of the rents within the meaning of the forfeiture clause, because the alienation which that clause prohibited was not an alienation of the land but of the interest of Charles, which was confined to the rents, and the intention of the testatrix was to provide for a forfeiture only in case Charles did, or permitted to be done, any of the prohibited acts.</p> <p>2nd. That the interest of Charles in the remainder of the land devised in trust for him passed under his will which contained a formal execution of the power of appointment.</p>

<p>Appeal from the Superior Court of Baltimore City (Harlan, C. J.) In the sixth exception the motorman of the car, which caused the injury complained of, testified that the space within which a car can be stopped “depends altogether on the conditions of everything, the condition of the rail, the position the car is in and everything else. There is no certainty about a thing of that kind, no matter what the speed.” The counsel for the plaintiff then asked the following question: “ Speaking of the conditions that night right on those rails, supposing now the car were running at a speed of six miles an hour on the same track before the accident happened, just immediately before the accident happened, at what distance could you, as motorman, with the appliances you had on that car for checking i.t, could you have stopped that car?” To this question the defendant objected, but the Court overruled the objection and permitted the question to be asked. And the witness answering said: “Well you say about stopping, running at the rate of six miles an hour. Just as I told you in the first place when you asked me how many miles an hour was I running at the time of the accident; I have no idea what six miles an hour is; I know when we are running full speed, half speed and such as that, but as to the distance in miles or the time I am not supposed to know that.”</p> <p>The plaintiff obtained a judgment on verdict for $800.</p>

<p>. Specific Performance — Bill -Must Set Forth Complete Contract — Certainty and Mutuality — Evidence of Extrinsic Facts Showing Spe-. cific Performance to be Inequitable.</p> <p>■In a bill for the specific performance of defendants’ .contract to purchase certain property, the only contract set out was a writing signed by the defendants saying that they accepted plaintiff’s offer to sell the property at a designated price. The terms of the offer itself did not appear. Held,</p> <p>1st. That it was obligatory on the plaintiff to set forth the whole agreement, which was composed both of offer and acceptance, so that the Court may see whether as an entirety it is definite and certain and such as ought to be specifically enforced, and since the bill in this case does not disclose what the contract of sale really was a demurrer lies thereto.</p> <p>2nd. That the bill is also defective in that it fails to show a contract of sale binding upon plaintiff as well as defendants, since the Court will not specifically execute a contract which is lacking in mutuality of obligation.</p> <p>The defendant in a bill for specific performance is entitled to show by parol evidence that there are circumstances which make it inequitable to grant the relief asked for, although there exists a valid contract, and in such event the Court in its discretion will refuse specific performance and leave the plaintiff to his remedy at law.</p> <p>When a vendor agreed, at the time of making a written contract of sale, that certain other matters in which vendor and vendee were concerned should be adjusted so that the funds due to the vendee in those transactions might be used in paying the purchase-money, it would be inequitable to enforce the contract of purchase against the vendee until these precedent conditions have been complied with.</p>

) The trial Court rejected all of the defendant’s prayers, and of its own motion granted the following instruction, as matter of law, for its own guidance, sitting as a jury and as a modification of the plaintiff’s first prayer: “The Court rules as a matter of law, that if it appears from the evidence that the plaintiff never furnished to the defendant such proofs of loss as were under and by the terms of the policy sued on in this case required to be furnished, although the…

<p>Municipal Corporations — License Fee for Vehicles Using Streets of City— Validity of Ordinance — Police Regulation.</p> <p>The Act of 1898, ch. 158, authorized the Mayor and City Council of Cumberland to license, tax and regulate wheeled vehicles, provided that the funds derived from licenses shall be applied only to the maintenance of streets, etc. The municipality passed an ordinance making it unlawful for any person to drive a wagon or other vehicle over the streets of the city without having obtained a license therefor. Different charges were made for different vehicles ; the license fee for á one-horse wagon for one year being $2.50. It was provided that the funds derived from these licenses should be applied to the maintenance of the streets. The ordinance also made it unlawful to peddle goods on the streets of the city without a license, but this was not to apply to farmers offering lor sale the products of their own farms. Plaintiff had a dairy farm beyond the corporate limits and sold milk to customers in the city. He was arrested and fined for driving a milk wagon in the streets without a license, and filed the bill in this case for an injunction to restrain the enforcement of the ordinance, alleging the same to be invalid. Field,</p> <p>1st. That the plaintiff was required by the terms of the ordinance to take out a license for the use of the streets with his wagon, and the proviso exempting farmers selling their own products from taking out a peddlers’ license does not exempt plaintiff from the necessity of having a license for his wagon.</p> <p>2nd. That the ordinance is not invalid because it applies to non-residents using the streets of the city as well as to residents, since the ordinance was passed in strict conformity with the legislative authority, and makes no discrimination between different classes of persons owning vehicles.</p> <p>3rd. That the ordinance is a legitimate exercise of the power to impose licenses, either for the purpose of revenue or as a police regulation, and is authorized by the Declaration of Rights, Art. 15.</p> <p>4th. That the amount of the license fee exacted by the ordinance is a reasonable exercise of the power to license conferred by the Legislature, as well as of the power given to tax wheeled vehicles.</p>

<p>Fire Insurance — Subrogation of Insurer to Right of Action of Assured Against Wrong-doer Causing Loss — Settlement Made With Wrongdoer by Assured — Repudiation by Insurer of Assured’s Right to Sue Wrong-doer — Right of Assured to Retain Sum Paid by Wrong-doer for Loss of Profits not Covered by Insurance — Allowance of Counsel Fees.</p> <p>When property covered by various policies of fire insurance has been destroyed by a fire caused by a third party’s fault, so that the insurers have the right under their policies after payment of the loss to be subrogated to the insured’s right of action against the wrong-doer, and all of them except one recognize the right of the insured to represent them in a suit against the wrong-doer and acquiesce in a certain settlement of the claim made in good faith, then the insurer who so repudiated the right of the insured to bring the suit against the wrong-doer is not entitled to demand from the insured more than its proportion of the sum paid by the wrong-doer for loss on the property insured in pursuance of the settlement so made, although an additional sum was also paid for another loss caused by the same wrong and not covered by the insurance.</p> <p>Defendant’s stock of merchandise, which was covered by nine policies of insurance, was destroyed by a fire caused by the negligence of a gas company. Under an adjustment the insurers paid to the defendant about $17,000, receiving receipts referring to a clause in the policies which provided that the insurers should be subrogated to the extent of their payments to the right of recovery of the insured against the party causing the loss. Defendant had previously instituted a suit against the gas company in which all of the insurers except the plaintiff co-operated. Plaintiff when requested so to do had refused, and brought an action itself against the gas company which was dismissed, when it was ascertained that the only action which could be brought against the tort-feasor must be by the insured. At the request of the insurers, other than the plaintiff, defendant settled his suit against the gas company by agreeing to accept a judgment which appropriated $9,000 for loss on his merchandise and $9,000 for loss of profits in the business — the latter item not being covered by the policies. Defendant had previously agreed to pay counsel who conducted the litigation thirty per cent of the amount recovered as a contingent fee. Since the insurers were entitled to be subrogated to defendant’s right of action against the gas company, defendant proposed to distribute among them, pro rata, the $9,000 so recovered by him for loss on merchandise less expenses of the suit. The share of the plaintiff company under this distribution was about $800, but plaintiff claimed that it was entitled to receive the amount it had paid to defendant being over $2,000, and filed the bill in this case to enforce said claim, denying the right of defendant to compromise his action against the gas company and alleging that the insurers were entitled to be subrogated to the whole amount paid by the gas company. Held,</p> <p>1st. That the agreement under which the loss on the merchandise in the suit against the gas company was estimated at $9,000 and judgment entered accordingly, although this amount was less than that which defendant had received from the insurers, having been made in good faith and with the assent of all the insurers, other than the plaintiff, was a valid compromise and under the circumstances of this case was not in violation of plaintiffs’ rights under the subrogation clause of the policy.</p> <p>2nd. That the defendant was entitled to retain from the amount paid by the gas company the costs and the reasonable expenses of the suit, and the insurers, including the plaintiff, knew what contract had been made for counsel fees and did not object to the same when the loss was adjusted under the policies.</p> <p>3rd. That in defendant’s suit against the gas company he was making a bona fide and valid claim for loss of profits as well as of merchandise, caused by that company’s default, and the agreement by which $9,000 was awarded as damages for loss of profits having been made with the assent of the insurers, other than plaintiff, the defendant is entitled to retain that sum, since the plaintiff’s right of subrogation related only to defendant’s right of action for loss on the merchandise insured.</p> <p>4th. That plaintiff is entitled to receive only its proportion of the $9,000 paid by the gas company for loss on merchandise, less defendant’s costs and expenses of the suit.</p>

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

<p>^dilivays — brdínañce Granting Rig St tó Lay Tracks JVitfiin Lim-‘Affp.ic *iSlirppf. 7*c Sp/1h)pdA^Pf//rf.ih)l':Mar'rt.hrrñdti^AÁb‘‘n^'^f.^ppi Sir eel Áá ■“¡ritéd^Thñe' ‘After'Street is -Pdved-^Partitíl-'-Mácadaiiiiziúg'óf'Streét . i v ■ > Not;(i. ‘RavJhgr-r'jEffiecho/iNew i City Charter bn Exystingi Stre’et-'Rail- . =., :!!•:, ,! i;i ,i Oil,'. vlk;; -,¡| O -,-u •-</p> <p>Aft1 ordinance 6‘fitheMayor 'aln'd City-Gbundl of‘Baltimore’-authorized á ¡. ¡ sfrept raijwhy epptPianM to -lay its tf-afikfi bn,certain streets,- bbt it-was' also i ¡ordained that .the,work, should.be begun, within six months and com-- * >, Í j {,< i > , i ■ / * : j » - • J, j , , \ t i , , i • ( J f t) i i» t • > ,. ¡' • .1 • ii •,»i ■ ■ i (pleted within twelvfe months after the apprpval qf thefordinance, other-1 ''wife the jlriViiegb'gfahted'Shdulcl -bé vBídO A1 pfdvife’irfthe1 ordinance declared that in case any of the ’designated', stleéísi should riot;b& then ; gi$<jled,an;d p,aye<d,^th^-^i^e-forjth^.cor^glptjionjof thq railway-shcojlfi be extended .for twelve mon^s. One, of tjie ¡streets n^med waS|i).pt, and Eas'WP been,1'graded'and paved’in'the feme banner'as bthér city ' -' streets;:bü-t; betWéeh ¡the- froitttá'c'óvér.éd' by -the-©rditiafiée' it 'ilvas' graded ,- -.gud, macadamized with ¡broken stone, ^bput. t.wfenty-pi: thirty feet!in-the middle, the remainder of the bed of,the street.being a dirt, road.,. Such macadamizing of the street was not the Kind of paying required by the ',;iGity’Codéj;Aftí(4Íi;-sec.'39'.'' W¿/ol,-’Ihá:t''thé'Stréetih”qúBstibn had'hot •' -béén payed wiithifitbie riieaningiof said, ordinance',! and jbe,right!‘of the raifwaypomp^ny tp lay,itSftracks,thetepn;had-ii.o¡t1beenifdrfeitedl?PQans;p „ of the expiration of the time first limited.</p> <p>After .the passage qfthe above mentioned ordinance authorizing the rail-!l wáy company id lay its tracks on c'ert'áiñ streets, aiiá before the work ' -'Wá^üóhe the neW: chaftér bfthé'hity-of’Baltihlore (Act of 1898, eh'. 123J ;,! was ;enacted,, and this, provides that railway- companies -shall pay for any , privilege tp(lay-tracks on the streets of .the, pity,, and that the. municipality shall have the right to purchase the franchises at the expiration of a ■' certaiti!plériod.'! Büt thé'chartfer"also:enacfs-'that it'feáll hot be taken to impair any right existing at the time of its enactment, !and that ordinances . thenjin fpree,and,pot-inconsistent therewith shall.be continu.éd-,; 'fíeffh that the right under the ordinance to lay the tracks was a right .existing when the new charter was passed, and was not affected by anything therein contained.1 O' r 1 .*'■(</p>

<p>Charitable Uses — No Trust is Created by Testator's Suggestion as to the Use to be Made of Legacy.</p> <p>A testator gave a legacy in absolute terms to a church corporation and added : “I suggest if the spire of the said church property be unfinished at the time of my death, that the funds received, or such part thereof as may be necessary, be used for the purpose of completing the same, and further suggests, if the spire is finished, that the said funds, or what may be left after completing the said spire, be invested by the said committee, and the income devoted to the work at the church mission, known as William’s Chapel, but if the work has been abandoned, then said income to be used for the relief of the poor of the said church.” Held, that this language does not in itself impart that the legatee took the gift impressed with a trust for any of the uses suggested, and it is also clear from the whole will that the testator did not intend to create a trust.</p>

<p>Appeal from a pro forma decree of the Circuit Court No. 2, of Baltimore City.</p>

<p>Appeal from a judgment of the Circuit Court for Harford County (Watters, J.)</p>

<p> Landlord not Liable to a Subtenant for an Injury Caused by Defective Condition of the Leased Property. </p> <p>A landlord who leases private premises which are then or subsequently become dangerous from want of repair is not liable to the lessee or to a subtenant for an injury caused by such defective condition of the property, in the absence of fraud or concealment.</p> <p>But where-the property rented is a wharf or hall, or premises where the public generally are to be'invited, then, if they are unsafe when leased, the landlord is liable for injuries thereby occasioned to third parties.</p> <p>Defendant leased a house to one A, who rented out rooms therein to persons who used the halls and porches in common. Plaintiff was a subtenant of A and his daughter, a child five years old, fell through an opening in the balustrade of a porch on the second floor, which was caused by some of the balusters having fallen out. In an action to recover damages for the death of the child resulting from the fall, there was no evidence that the defect in the balustrade existed when the property was originally rented or that the defendant knew of its existence. The lease imposed no obligation upon the landlord to make repairs. Held, that the defendant is not liable to the plaintiff for the injury so occasioned.</p>

<p>Municipal Corporations — Paving Streets — Title and Validity of Ordinance — Notice of Assessment to Abutting Property Owners — Discretion Given to City Engineer to Use Vitrified Brick in Addition to Asphalt — Front-Foot Rule of Apportionment.</p> <p>The General Paving Ordinance, contained in Art. 48 of the Baltimore City Code, directs that when a street is to be paved, the following notices shall be given: 1, as to the pendency of the ordinance providing for the paving of the particular street; 2, as to the apportionment of the cost of the paving ; 3, as to the right of each interested party to appeal from the findings of the City Engineer as to the apportionment to the Baltimore City Court. The title of Ordinance No. 50, of 1900, was “to provide for the grading, and paving with sheet asphalt, and curbing all that portion of St. Paul street from 25th to 30th street.” The ordinance directed that the cost of the work, with one exception, should be assessed upon the abutting property in proportion to its frontage, and it directed the City Engineer to pave the street with sheet asphalt, except that vitrified bricks might be used in the gutters and upon such other portions of the street as the City Engineer might deem desirable or necessary. The city charter declares that every ordinance enacted by the city shall embrace but one subject which shall be described in the title. Notices of Ordinance No. 50 were duly given in pursuance of Art. 48 above mentioned. An abutting property owner, upon whom part of the cost of paving was assessed, attacked the validity of the ordinance and assessment upon various grounds. Held,</p> <p>1st. That the title of the ordinance is not misleading or in violation of the city charter relating to titles, since it is not necessary that the details Qf the subject-matter dealt with should be set forth in the title of the ordinance, and the use of vitrified brick in the manner provided in the body of the ordinance does not impair the scheme to pave the street as a whole with asphalt, and that the notice as to the pendency of the ordinance was also for the same reason sufficient.</p> <p>2nd. That the ordinance is not invalid in that it delegates to the City Engineer a discretion to use either asphalt or vitrified brick in the paving, since the ordinance designated asphalt as the material to be used, and the City Engineer was only empowered to use the brick at specified places, and this limited discretion was not a delegation of the legislative authority to determine what material should be used.</p> <p>3rd. That the objection that the street in question was already paved with cobble stones and needs no other pavement is untenable, since the question whether a street shall be repaved or not, is a matter entirely within the discretion of the City Council and beyond the control of the Court.</p> <p>4th. That the front-foot rule of apportioning the cost of the paving upon the abutting owners, after notice to them is valid under the city ordinances and the previous decisions of this Court.</p>

<p>Contributory Negligence — Standing Between Tracks of Street Railway — Instruction to the Jury.</p> <p>Two electric cars, one on the north and the other on the south track of the railway, were standing to take on and discharge passengers on the opposite sides of a cross street, when the plaintiff, a large fleshy man, went with a “cooling-board” to the front platform of one of the cars for the purpose of handing it over the gate to the motorman. He approached this car between the tracks, although the way to the other side of the car, nearest the sidewalk, was unobstructed. While he was standing there the other car approached slowly, its gong ringing, and plaintiff’s back being turned towards it. Both motormen cried out a warning, but plaintiff was caught between the cars and injured. The preponderance of the evidence showed that when the car which caused the injury crossed the street plaintiff was standing on the front step of the other car, out of the way of danger, and stepped down immediately before he was struck, although plaintiff testified that he had not gotten on the step- of the car. Held, that the plaintiff, by putting himself in an obviously dangerous position, was guilty of such contributory negligence as precludes a recovery of damages from the railway company and that, under the circumstances of this case, it was error to instruct the jury that, although plaintiff was guilty of negligence, yet that is not a bar to recovery if the motorman of the approaching car could have avoided the accident by the exercise of due care after he saw or could have seen the plaintiff’s peril.</p>

J., and Motter, J.) The following opinion in that Court was delivered by McSherry, C. J. There are several interesting questions presented by the record now before us. That they may be clearly understood a brief statement of the facts out of which they grow must first be made.

2, of Baltimore City (Stockbridge, J.), overruling a demurrer to the bill of complaint, and requiring the defendants to file such answer as the merits of the case and the practice of the Court require.

J.) The defendant’s third prayer asked the Court to instruct the jury that if they find from the evidence that benefit certificate No. 57103 was issued by the defendant company Miles Tull, in which N. J. P. Tull was named as beneficiary on the 5th day of August, 1898, and that if they further find that prior to the issuance of said benefit certificate to the said Miles Tull, to wit, on the 2nd day of August, 1898, he, the said Miles Tull, expressed the intention of not…

<p>Appeal from an order of the Circuit Court for Baltimore County (Burke J.)</p>

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

J., and Sloan, J.) At the trial the following prayers were offered: Plaintiff's Prayer. — The Plaintiff prays the Court, to rule, as matter of law in this case, that under the pleadings and agreed statement of facts herein, the plaintiff is entitled to recover in this case the amount of the State taxes levied against the defendant by the Acts of Assembly of 1890 and 1896, for each of the years from 1891 to 1898, both inclusive, according to the computation of the same made…

<p>Appeal from a decree of the Circuit Court of Baltimore City (Wickes, J.), granting an injunction (upon bills, answers, replication and testimony) prohibiting upon the terms set forth in the decree the city authorities of the city of Baltimore and the Police Department from preventing the construction, by the appellees of conduits for telephone wires in certain named streets in the city of Baltimore.</p> <p>Ordinance No. 41 of 1889, referred to in the opinion of the Court is fully set forth in 89 Md. 691-694.</p>

<p>Municipal Corporations — Contract Formed by Acceptance of Bid for Lighting Streets — Subsequent Preparation of Formal Contract— Superintendent of L^amps Not Authorised to Appoint and Remove Workmen Employed by the Contractor.</p> <p>When in pursuance of his authority a municipal official advertised for bids for doing certain public work according to specifications, and plaintiff’s bid was accepted and the contract awarded to him by the Board of Estimates, a final and binding contract is thereby made, although the city charter provides that the “successful bidder for city work shall execute a formal contract to be approved as to its form, terms and conditions by the City Solicitor;” and when the formal contract is prepared no terms can be inserted therein not warranted by the papers evidencing the contract or by the charter.</p> <p>The charter of Baltimore City (Act of 1898, ch. 123), provides that all heads of departments and boards shall have the sole power of appointment and removal at pleasure of all deputies, employees, etc., employed by them. Section 204 provides that the Superintendent of Lamps and Lighting (the head of a department) shall have charge and supervision of the lighting of the city. Section 15 directs that the successful bidder for city work shall execute a formal contract to be approved as to its form, terms and conditions by the City Solicitor. The Superintendent of Lamps advertised for bids tor lighting the city for three years according to certain specifications. The plaintiff company submitted a bid which the Board of Awards accepted and awarded the contract accordingly. The formal contract submitted to the plaintiff for its execution provided that “ all the employees necessary to perform the requirements of said specifications shall be appointed by the Superintendent of Lamps and Lighting, who shall have reserved to him the right and power to remove at any time any of said employees.” The plaintiff company refused to execute the contract containing this clause and asked for a mandatory injunction requiring the execution of a contract without such a provision. Held,</p> <p>-xst. That the Superintendent of Lamps was authorized under his power to supervise the lighting of the city to contract for the lighting of the streets, subject to ratification by the Board of Awards, without any enabling ordinance of the Mayor and City Council, and the award made to the plaintiff constituted a complete and valid contract into which no extraneous provision could subsequently be introduced by the Superintendent.</p> <p>2nd. That the Superintendent of Lamps is not authorized by the charter to appoint and remove the workmen employed by the plaintiff company in carrying out the contract.</p>

<p>Mandatory Injunction — Change in Lower Floor of Building Affecting Access by Tenant to Upper Floor — Reasonable Elevator Service— Right of Tenant to Maintain Signboard — Action at Law and not Injunction Proper Remedy in this Case.</p> <p>Plaintiff company was the lessee for five years of certain rooms on the seventh floor of an L shaped building which had an entrance on Calvert street and another on Baltimore street. There were two elevators and two stairways to the seventh floor, but the means of access ordinarily used by plaintiff and its customers led by a hall from Calvert street to the elevator and adjoining stairway at the rear end of the part of the building fronting on that street. Plaintiff’s lease provided for the use of the rooms “with elevator service,” without designating which elevator, and made no mention of stairways. A signboard at the Calvert street entrance contained plaintiff’s name and location. Subsequently, the defendant company became the lessee of all the Calvert street building subject to the unexpired lease of the seventh floor to plaintiff. Defendant expended over '$30,000 in converting the rest of the building into a hotel. During the making of these alterations negotiations were going on for the purchase by defendant of plaintiff’s lease, but thfey did not result in a sale. When the alterations were completed, access to the Calvert street elevator could only be had on the first floor by going through the cafe of the hotel or through an area, which approach was less direct than had formerly existed, and defendant removed plaintiff’s signboard and also closed a doorway on the stairs between the sixth and seventh floors. Plaintiff filed a bill for a mandatory injunction requiring defendant to restore to its original condition the hallway on Calvert street or to construct a private entrance way for plaintiff, and to furnish therefrom elevator service to the seventh floor, and also the use of the stairway. Held,</p> <p>1st. That there was no implied condition in plaintiff’s lease that the subdivision of the lower floors of the building should remain as it was when the lease was made, and that the defendant had the right to make changes in the part of the building leased to it, provided plaintiff had a reasonably convenient access to the elevator.</p> <p>2nd. That although the alteration in the building may have caused inconvenience and loss to the plaintiff yet it did not amouut to such a destruction of its rights as to require the interference of equity by injunction.</p> <p>3rd. That the lease did not authorize plaintiff to maintain a signboard in the hallway of the first floor and its removal by defendant is not ground for an injunction.</p> <p>4th. That since the plaintiff still has the use of the elevator, although in a different manner from that formerly existing, and since plaintiff stood by without objecting while defendant made its costly improvements, it would now be oppressive and unjust to require defendant to destroy those improvements, and consequently the mandatory injunction asked for, which is a matter resting in the sound discretion of the Court, should not have been granted.</p> <p>5th. That the case is not a proper one for equitable relief, but the plaintiff company should be remitted to its right to sue at law for such damages as it sustained by reason of defendant’s interference with its business.</p>

<p>Appeal from a pro forma order of the Circuit Court of Baltimore City, refusing the injunction asked for in the bill of complaint.</p>

<p>Title of Statute — Municipal Corporations — Ownership of Electric Lighting Plant— Ultra Vires Contract of Municipal Officers — Estoppel.</p> <p>The title of the Act of 1900, ch. 75, is : “An act to provide for the establishment of an electric light plant in Hagerstown, Maryland.” The Act itself authorized the municipality of Hagerstown to construct an electric light plant for the purpose of lighting the streets and supplying light and electricity to its citizens. Held, that the Act is not void because in violation of Constitution, Art. 3, sec. 29, which provides that the subject of every law shall be described in its title.</p> <p>The Street Commissioners of Hagerstown were authorized by Local Code, Art. 22, sec. 191, to contract upon certain terms for the lighting of the city streets for a period not exceeding ten years. They made a contract with one E. for lighting the city for five years from January 1st, 1896, and agreed that he should have the like contract for a further period of five years provided that before the termination of five years he should have developed a site on the Potomac River or a central station with capacity to supply electric power for operating machinery in Hagerstown. This contract was assigned to the Hagerstown Railway Company. The Act of 1900, ch. 75, authorized the city of Hagerstown to establish an electric light plant and prohibited the future lighting of the streets by contract. The plaintiffs filed a bill alleging that the railway company had complied with all the conditions entitling it to a renewal of the contract for lighting the streets for another period of five years and asked that the municipality be enjoined from constructing an electric light plant or issuing bonds therefor. Held, that since the consideration mentioned for the option to renew the contract was the establishment of a plant to supply electric power not to the municipality but to private parties, this provision of the contract was beyond the power of the Street Commissioners to make, and is not binding on the city, and consequently the Act 1900 does not impair any obligation of the contract.</p> <p>Every one dealing with the officers of a municipal corporation is charged with knowledge of the extent of their powers, and hence a municipal corporation may set up a plea of ultra vires or its own want of power under its charter to enter into a given contract, nor is it estopped from making such defense because the other party to the contract has expended money upon the faith of the agreement.</p> <p>A municipal corporation which has its own electric plant for lighting the streets may be authorized by the Legislature to supply light to its citizens.</p>