Volume 96 — Maryland Reports

J., Martin and Brown, JJ.) The only agreement the appellant ever made with Simpers and Russell was the one which provided for the purchase of the property at and for sixteen hundred dollars ($1,600.) This agreement was fully performed.

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

J., Henderson and Motter, JJ.) Assuming the statement of the article to be true, it was the duty of the State’s Attorney to see that an inquest was held; to give the justice and the deputy sheriff, in the course of the investigation, the full benefit of the skill and experience, which as State’s Attorney he should have possessed ; to cause Bessie Sellman to be held until the mystery was cleared up ; and, if the investigation disclosed probable cause to believe a murder had…

(Dennis, J.) We- submit the following propositions: 1. That October ist is the day before which property has to be taxable in order to be assessed for the following year, and that no property becoming taxable after that date is subject to taxation for the year immediately following. 2. That the structure as-it existed on October ist, 1901, on the appellant’s ground, and which afterwards, when complete, became a dry dock, was not taxable.

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

), where there was a judgment for the plaintiffs for $ 15,000. Plaintiff claims that the whistle was not blown at or above the bridge. As the engineer depended on this whistle to get his target changed, and as it was changed, it would seem most likely that it was blown. There is no evidence that it was not blown. Two witnesses for the plaintiff testify that they did not hear it blow —Philip and David Sykes.

<p>Appeal from an order of the Circuit Court for Howard County (Jones, C. J.)</p> <p>i. The mortgage debt was a contract which, according to the intent and expectation of the parties thereto, was to be performed in the State of New York. In such case the validity of the contract must be determined by the laws of that State. The legal rate of interest in New York was 7 per cent, and therefore the contract was not usurious.</p> <p>While the rule is, that the validity of a contract is to be determined by the law of the place where it is made, yet, where it appears that the contract, while made in one place, was expected to be executed in another, the law of the place where it is to be executed or performed governs. On this principle it has been frequently held that the validity of a mortgage debt which is to be paid in another State than the one where the property is located is to be determined by the law of the State where it is to be paid. Dolman v. Cook, 14 N. J. Eq. 56; DeWolf v. Johnson, 10 Wheaton, 367; Coghlan v. So. Car. R. R. Co., 142 U. S. 101; Eastwood v. Kennedy, 44 Md. 572; Shipmen v. Bailey, 20 W. Va. 144.</p> <p>The mortgage notes do not state upon their face where they are to be paid, and in the absence of any facts showing what the intention of the parties was, of course it would be presumed they would be paid in the State of Maryland. It does appear, however, that the payee of the notes, as already stated, was a resident of' the city and State of New York at the time these notes were given. Now in the' absence of any special agreement to the contrary, a well-known rule of law is that the debtor must seek the creditor and make payment to the creditor at his place of residence. Knowledge of the law being presumed, of course it must be assumed that the parties knew this rule and expected to be governed by it; so that in effect it was an agreement to pay these various amounts of money in the State of New York at the residence or place of business of the mortgagee.</p> <p>2. The defense of “ Usury” should have been set up in the answer. It is true that it has been decided in many cases in this State, that usury does not make the mortgage invalid or interfere with its being enforced by foreclosure ; and for that reason it cannot be pleaded in bar of a sale; and we do not contend that usury should have been, or could have been set up in the answer in this case for that purpose. That, however, is a very different proposition from saying that it should' not be set up in the answer at all in a case of this. kind. The Maryland cases it is true, hold, that the proper time for raising the question of usury is on the distribution of the proceeds of sale, the ordinary method • being by exceptions to the audit. But it will be found, we think, that these cases were all cases where the sales were made by virtue of power of sale contained in the mortgage, or, by virtue of the covenant to submit to decree of sale in the event of default, and were ex parte proceedings in which the opportunity to answer was not afforded .to the mortgagor at all and he was not called on to say whether he owed the amount claimed by the mortgagee in the proceedings, or not; he never had a chance to say whether he owed it or not, and therefore was not considered to waive his right to raise the question of usury by failing to set it up in his answer. Smith v. Meyers, 41 Md. 425.</p> <p>3. The mortgagor (Davis), is equitably estopped by his conduct, from setting up the plea of usury.</p> <p>4. Calculations of interest in the second auditor’s account are, on their face, incorrect.</p> <p>The only contract in the case between the parties shows an agreement only for the payment of 7 per cent on the balance of the purchase money without reference to the place of performance, and it would be a strange rule of construction for the Court to read into this contract the State of New York and a rate of interest of 7 per cent per annum. “ It is well settled as a general rule that the lex loci contractus must govern the rate of interest where the contract does not provide, for its payment in another jurisdiction, or when the contract has nothing on its face, and there is nothing attending the making of it indicating it to be performed in another jurisdiction.” Beach on Modern Law of Contract, sec. 606.</p> <p>“ Usury is a moral taint wherever it exists and no subterfuge' should be permitted to conceal it from the eyes of the law. This, it is said, is the substance of all the cases. As a principle of international jurisprudence, no State is bound or ought to enforce or hold valid in its Courts of justice any contract which is injurious to its public rights, offends its morals, contravenes its policy or violates a public law. Dickinson v. Edwards, 77 N. Y. 573, 33 Am. Rep. 671, 2 Kent Com., p. 458; Varnum v. Camp, 13 N. J. L. 326, 25 Am. Dec. 476 ; Pacific Co. v. Hill, 56 L. R. A. 168.”</p> <p>Our Court will not aid an usurer to violate successfully the letter and spirit of our Constitution and statutes and thwart the declared policy of the State. Gardner v. Lewis, 7 Gill, 394; Smith v. McAtee, 27 Md. 439 ; Appeal Tax Court v. Patterson, 50 Md. 374.</p> <p>Is there any reason why the usurer in this case should not be visited with the penalties of the law ? or that the law should not be rigidly enforced ? Let the sorrowful pages of this record answer for this appellee, who has long staggered and at length fallen in his old age with strength and fortune spent. In 1871 Davis bought of Seaman for $20,000 two hundred and seven acres of land at Marriottsville, Howard County. He paid down in cash $9,000 and for the residue of the purchase money of $20,000 he gave the mortgage in this cause. From January 10, 1871, to January 10, 1896, he paid to the appellants $17,600, and then he stopped. He could stagger no longer. A sale for $12,050 under the mortgage follows, and the mortgagee, or her successors, becomes the owners under the sale of the entire mortgage property. Truly the borrower has been the servant of the lender. The appellee at one time had a farm worth $12,050, but it is now the farm of the appellants ; he had $17,600, but it has likewise gone to the appellants, and along with his part payment of $9,000 is in the pockets of the appellants. All is yielded up, and yet the appellants move the Court for a judgment in personam for the deficiency of $2,023.86 under the first audit, which allowed the extortionate interest. In his extremity the appellee sought the laws of his State for protection and asked that $ 11,000, with the lawful interest thereon, be charged against him, but that what was usurious be not allowed.</p>

), where there was a verdict for plaintiff for $7,500, which was afterwards reduced with his consent to $5,000. Held: “that the jury had the right to consider the fact that the pin came out when it did and draw from, it the inference that the defendant had failed to exercise ordinary care.” The presumption of negligence was held to obtain.

J.) The position taken by the appellants on the liability of the Clerk of the Court of Common Pleas is that he is a debtor ; his responsibility is absolute; any excuse on the ground of care or faithfulness is apart from the question, as in the case of any other debtor; that between accounting days he can keep the money in his safe or can deposit it; that if he does the latter and receives interest on such deposit the interest belongs to him.

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

<p>Appeal from the Court of Common Pleas (Harlan, C. J.)</p>

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

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

<p>Cross-appeals from an order of the Circuit Court of Baitimore City (Stockbridge, J.)</p>

<p>Appeals from Circuit Court No. 2, of Baltimore City (Wickes, J.)</p>

) Defendant's 1st Prayer. It appearing from the testimony in this cause that at the time of the injuries to the plaintiff, the Mayor and City Council of Baltimore had a contract with The United Electric Light and Power Company to light the streets of the city with electricity, and that it did not own or control the street electric lights, and that at the time of said injuries the electric light at the corner of Fulton avenue and Walbrook avenue, was allowed to go out, owing…

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

J.) The Court placed its decision on the ground of contributory negligence, which it stated was sufficient in law to preclude a recovery. Held: on demurrer: “The only relation between the parties is that of landlord and tenant. It is well settled that no duty rests upon the landlord to repair, and there can be no obligation, except such as may be created by the agreement of the landlord.

2, of Baltimore City (Dennis, J.) By the common law the real estate of a deceased debtor was not liable for the payment of simple contract creditors. Tessier v. Wise, 3 Bl. 38—9; VanBibber v. Reese, 71 Md. 611; Hammond v. Hammond, 2 Bl. 317. And in Maryland the simple contract creditor wai> without redress as agaipst lands descended or devised until the Act of 1785, ch. 72 (Code, Art. 16, sec. 188.) VanBibber v. Reese, supra.

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

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

<p>Officers — Policemen Appointed Subject to Removal For Cause — Notice of Charges — Appeal—Authentication of Evidence.</p> <p>■The Act of 1898, ch. 192, directed the Board of Street Commissioners of Hagerstown to appoint “regular policemen not exceeding ten to serve under such regulations and for such compensation as they may direct * * and said policemen shall be subject to removal for cause.” Held, that policemen appointed under the Act are entitled to hold their offices . so long as they are competent and efficient and that the power of the board to remove can only be exercised for some cause affecting the ability or fitness of an officer to perform his duties and after notice of charges against him and an opportunity to be heard.</p> <p>When upon appeal from an order directing the issue of a writ of mandamus the record contains certain evidence, but there was no bill of exceptions, or agreement of counsel or certificate of the trial Judge that such evi- ' dence was produced at the trial, it will not be considered by this Court.</p>

<p>Appeal From Orphans' Court — Powers of One of Two or More Executors — Distribution of Estate Before Expiration of Time For Filing Claims.</p> <p>Two of the three executors of the will of a decedent stated an account in the Orphans’ Court distributing the balance of the estate to one of the two as trustee under the will. Within thirty days thereafter the third' executor filed a petition in that Court alleging that he had refused to join in stating the account because the six months within which credi-tors of the testator could file their claims had not expired ; that that account had been passed without notice to him, and asked that the order ratifying it be rescinded. The Orphans’ Court dismissed the petition “without prejudice.” Held, that an appeal lies from this order of dismissal, as the order the petitioner sought to have rescinded had been passed without notice to him.</p> <p>An account distributing the balance of a testator’s estate to a trustee under the will was stated in the Orphans’ Court by two of the three executors before the expiration of the six months within which creditors could file their claims. There was then outstanding a claim against the testator’s estate which was secured by mortgage. The third executor, who did not assent to the account, had given a joint bond with one of the other executors. Held, that the order ratifying the account should be rescinded, since, under these circnmstances, the two executors could not require distribution of the estate to be made before the expiration of the statutory period for filing claims.</p>

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

<p>Appeal from the Court of Common Pleas, (Harlan, C. J.)</p>

J.) The Act of 1888 is a statute conferring or extending jurisdiction, and should, therefore, according to established principles, receives a strict construction.

J.) It is conceded that', as provided in the second chapter of the Articles of Incorporation, the “ said church or congregation, its rector and vestry, shall at all times adhere to and observe the doctrine, worship and discipline of the Protestant Episcopal Church in the United States of America, as set forth in its creeds, articles, liturgy, constitution and canons,” and that under Canon 4, title 2, of the Digest of the Constitution and Canons of the General Convention,…

<p>Appeal from an order of Circuit Court No. 2, of Baltimore City (Stockbridge, J.)</p>

<p>Appeal from the Orphans’ Court of Montgomery County.</p>

J.) The bill alleges that at the time of the tax sale the purchaser was the tenant of appellants (which, of itself, is an allegation of possession); that it was his duty to pay the taxes according to the covenant in the lease; that he withheld his tax deed from the record for more than five years and until he was ready to transfer the title to Toner ; that he alone knew that the description on the tax ledger referred to the lot in question ; that notice of the proposed sale…

2, of Baltimore City (Dennis, J.) The Maryland tax laws require the levying of a personal tax on non-resident holders of stock in Maryland corporations. In view of the recent and emphatic declarations of this Court on this point, it is not considered necessary to argue the proposition.

<p>Dissohition of a Corporation — Sale of Land Held by Trustees — Construction of an Act of Assembly.</p> <p>Plaintiff filed a bill in equity setting forth that by an , Act of Assembly incorporating the defendant, Agricultural Association, he and certain other persons were made incorporators and trustees ; that the State appropriated a sum of money for the purchase of land to he held by the trustees for the association until its dissolution or “until the association shall hold no exhibition for three successive years, then said lands shall be conveyed to the State ; ” that a subsequent Act authorized the trustees to sell the land and improvements in case of a dissolution of the association and distribute the proceeds in a designated manner. The bill further alleged that no exhibitions had been held on the land for more than three years and that the franchises of the association had fallen into abeyance and been dissolved, but a pretended board of directors was in possession of the property ; that the plaintiff was the only survivor of the originally nominated trustees and no successors of the others had been elected. The prayer of the bill was for a decree dissolving the association and for a decree directing the sale of the land and the distribution of the proceeds. Upon demurrer to the bill Held,</p> <p>1st. That the Court has no authority apart from statute to dissolve a corporation and the case presented by the bill is not within any statute, and the charter of the defendant association does not provide that it shall be ipso facto dissolved or its charter forfeited for failure to hold-exhibitions for three years.</p> <p>2nd. That the allegations of the bill do not show that the corporation has been already dissolved or has ceased to exist, and even if its charter ought to be forfeited yet no forfeiture of a charter can be enforced against a corporation collaterally or in any other mode than by a direct proceeding instituted by the State.</p> <p>3rd. That since the association has not been dissolved and the Court has no jurisdiction to decree dissolution, there can be no decree for a sale of the land because a sale is only authorized under the Act upon a dissolution of the association, and therefore the plaintiff’s bill was properly-dismissed.</p>

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

) Each State has within its territorial limits full plenary and exclusive power over the whole subject of bankruptcy and insolvency. It is not derived from grant of any kind but it is a part of its sovereignty. The whole power of the State over bankruptcy, therefore, still remains, except in so far as the power may have been delegated to the Federal government.

<p>Appeal from an order of the Circuit Court for Prince George’s County (Merrick, J.)</p> <p>The cause was submitted to the Court on briefs by :</p>

2, of Baltimore City (Wickes, J.) February 23,. 1889, John R. C. Gardner and Sarah Ann Gardner, his wife, purchased a piece of land fronting fifty-four feet on the west side of Harford avenue, near Chase street, in said city, from Olivia Wolf, after they had had it surveyed by Martenet, and had found that it embraced the whole of the lot, piece or parcel of ground granted and conveyed by William Price and his wife to Marcus Wolf, July 27, 1849, improved by a brick dwelling…

<p>Appeal from the Circuit Court for Talbot County (Pearce, C. J., Martin and Brown, JJ.)</p>

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

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

J.) Plaintiff's ist Prayer. — That if the jury find from the evidence the incorporation of the United Milk Producers’ Association of Baltimore City, the payee of the notes sued on in this case, given in evidence; that the defendant was a member of said association ; that said notes were delivered by the defendant to said association, and that before the maturity of .either of said notes, said association, by its treasurer, James B. Councilman, if they so find, endorsed the…

J., Burke, J.) The Act of 1894, ch. 607, is unconstitutional because it does not require that notice of the proceedings therunder be given.

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

<p>Appeal from an order of Circuit Court No. 2, of Baltimore City (Dennis, J.)</p> <p>REPORT OF AUDITOR.</p> <p>The bill of complaint alleges among other things that the complainant and defendants are co-partners, as the attempted incorporation of the consolidated company, the United States Electric Power and Light Company, is void.</p> <p>The Court by decree of November 26th, 1897, has decided that the said United States Electric Power and Light Company was not duly incorporated and did not acquire and possess the powers and rights of a legally incorporated company under the laws of Maryland. The auditor does not understand, however, that the Court has as yet considered and determined whether or not the parties interested in the said company, are as inter sese co-partners, or what is their legal status, as regards each other. The facts are: <■</p> <p>On October 8th, 1881, the United States Electric Light Company attempted to incorporate under the general law, and on September 5th, 1885, the United States Electric Lighting Company made a similar attempt, and on October 21st, 1885, the present company, the United States Electric Power and Light Company, was attempted to be formed by a consolidation of the two former companies.</p> <p>By the terms of the pretended articles of consolidation the present company was to have a capital stock of five thousand shares of one hundred dollars each, and its board of directors was to consist of nine of its shareholders. Under these attempted incorporations the United States Electric Power and Light Company erected works and proceeded to furnish light and electric power in Baltimore City. On March 7th, 1882, The Brush Electric Company made a similar attempt to incorporate under the general law, and in 1890 applied to the Legislature to validate its attempted incorporation, which the Legislature did March 30th, 1890, ch. 233.</p> <p>In 1886, the Brush Company purchased from certain stockholders 2784 shares of the United States Electric Power and Light Company, and thus obtained a controlling interest in the United States Company.</p> <p>Under this state of facts, the question arises, what was the relation thus created between the Brush Company and those interested in the United States Electric Power and Light Company.</p> <p>As to third parties, who had dealings with, or became creditors of the United States Company, there can be no doubt that the relation would be that of quasi co-partners. 1 Lindley on Part., 25. But as between themselves, the conditions seem to lack many of the elements which go to create the relation of co-partners. Thompson on Corporations, vol. x, sec. 14, states as follows the difference between a corporation and a partnership is: “ 1st. Its members may in general, without restraint, by transferring 'their shares, introduce other persons in their stead,” &c. “ 2nd. The members of a partnership are agents of the partnership firm, whereas in a corporation they only act through the agency of a board of directors,” &c. “3rd. The partners are liable in their private estates, for debts,” &c. And furthermore as between the parties themselves the mere fact of sharing in the profits will not create a partnership between the parties themselves, as to. the property, contrary to their intention. Berthold v. Goldsmith, 24 How. 537. And again, between the parties themselves the test has always been their actual intent. Culley v. Edtvards, 44 Ark. 424; Waring et al. v. Nat. Marine Bank, 74 Md. 278.</p> <p>That there was no intention or understanding upon the Brush Company, or those representing it, when it bought into the United States Company, to become partners with their other co-shareholders in the latter company, is clear from the evidence, nor is there a particle of evidence to show that anyone connected with either company, supposed or intended at the time of said purchase of stock by the Brush Company that a co-partnership was thereby formed as between themselves. But all parties up to the filing of "the present bill, treated the United States Company as a duly incorporated company, the shares of which were sold, dealt in and transferred without the consent or prohibition of the other shareholders. The affairs of the concern were governed by a board of directors, elected by the shareholders according to the number of shares held.</p> <p>In view of the fact that the incorporation of the United States Company has been found to have been void, and that there was no intention of the parties to become co-partners as between themselves, it appears to the auditor that the shareholders in this unincorporated company should be treated as members of a voluntary association who have by their acts agreed to conduct its affairs as between themselves, as a corporation, the interests in which are represented by shares of stock, and the management of which has by them been confided to the board of nine directors, and that the written terms upon which they have agreed to conduct the association are to be found in the pretended charter and the by-laws of the association.</p> <p>If the auditor is right in this view of the case, then as between the controlling shareholder, the Brush Company, a duly incorporated company, and the shareholders of the United States Company who as above stated had conducted the United States Company as a corporation, it would appear that the principles of law which govern the dealings of one corporation with that of another corporation are the proper principles to apply to this case.</p> <p>That bill of complaint after alleging, as above stated, that the parties are to be considered inter sese as partners, goes on to charge that the Brush Company in buying a controlling number of shares in the United States Company, did so “with the intent and for the purpose of securing to itself the control of said United States Company and of its property and business and of withdrawing it from competition with said Brush Company,” &c., and that the Brush Company elected a board of directors, a majority of whom were representatives of said Brush Company, and that said Brush Company has for several years past conducted the business of said United States Company for its own advantage, without regard to the benefit or advantage of the United States Company, and has excluded the members of the United States Company from participation in the management or control of said business and from sharing in any benefit therefrom, and that the Brush Company is seeking to destroy the United Company and take its business for said Brush Company.</p> <p>That it took from the United States Company the business of the Northern Central Railway Company and that in consequence of this the United States Company is now running at a loss, and that it has taken other lighting contracts from said United States Company. And it has caused certain of the poles and lines of said United States Company to be taken down, and it has borrowed large sums of money from the United States Company. That when the central station of the Brush Company was destroyed by fire (October 13th, 1893), it required the United States Company to furnish the Brush Company’s customers with electric current and paid the United States Company for it at rates wholly inadequate for the service, and forced the machinery of the United States Company beyond its power capacity and thereby greatly injured the same, and thus caused its service to be inferior and unsatisfactory, and created dissatisfaction among its customers, resulting in loss of business and revenue.</p> <p>The bill then prays for an accounting by the Brush Company of all business, income, services and profits taken as aforesaid, and for a dissolution and winding up of the alleged co-partnership and the appointment of a receiver.</p> <p>Such being the allegations of the bill, this case would seem to be similar to that of Booth et al. v. Robinson et al., 55 Md. 419, with this exception that the company, the Powhatan Steamboat Company, which it is alleged was wrecked by mismanagement of the directors of another company, was a duly incorporated company, whereas in the present case, the United States Company was an unincorporated company or associatian. But which, as between its members, was carried on and conducted on the same principles and under the same form of management as a corporation. In fact the whole foundation of the allegations is that under the form of management established by the shareholders of the United States Company, the Brush Company was enabled, through owning the greatest interest in the United States Company, to elect a majority of the managing agents of that company, which was designated as a board of directors, and that as such agents they mismanaged its affairs.</p> <p>In Booth v. Robinson, 55 Md. 437, the Court (Judge Alvey) in referring to the case of the Charitable Corporation v. Sutton, 2 Atk. 400, says, “In that case, Lord Hardwicke, in defining the degree of care and fidelity required of a director, and for what nature of default he may liable, referred to the doctrine of the civil law upon the subject. By that law it is declared that those who are named by companies and corporations to have the direction of their affairs, are obliged to the same care and diligence as factors or agents. And they are answerable not only for any fraud and gross negligence which they may be guilty of but also for all faults that are contrary to the care required of them. 1 Domat, 2 b, til. 3, sec. 2, Art. 1. And in that case of Sutton, the Lord Chancellor held that directors of a corporation are liable in equity to the corporation not only for gross frauds and breaches of trust, whereby the assets of the corporation are wasted, but are also liable to the corporation, if the assets of the corporation have been wasted by negligence on their part, so gross as to amount to a breach of trust. This is the leading case upon the subject, and in which the law is as strongly laid down as in any subsequent case.” And on page 438, the Court continuing says, “ In the case of Overend, Gurney & Co. v. Gurney, L. R. 4 Ch. 701, and the same case on appeal, reported as Over-end, Gurney & Co. v. Gibb, L. R. 5 H. L. 480, where the question was most elaborately discussed in respect to the negligence of directors, it was held that facts which may show imprudence in the exercise of powers clearly conferred upon the directors will not subject them to personal responsibility; but if the imprudence be so great and manifest as to amount to crassa negligentia and consequently a breach of trust, personal responsibility will be incurred. Indeed all cases agree that directors are not liable for the consequences of unwise or indiscreet management if their conduct is entirely due to mere default or mistakes of judgment. And the onus of proof of fraud, combination, or gross negligence, to render the directors personally liable, is upon the party making the charge; and the proof must be clear and manifest. Turquand v. Marshall, L. R., 4 Ch. 375; Overend, Gurney & Co. v. Gibb, L. R. 5 H. L. 480; Hodges v. New England Screw Co., 1 R. I. 312.</p> <p>Although the Court as above stated was discussing that phase of the case which charged the directors, Robinson and Shoemaker, with a personal liability, it also applied these principles, in reviewing these facts to the liability of the defendant company, the Steam Packet Company, represented by said Robinson and Shoemaker.</p> <p>And continuing, the Court on page 439 says : “In this case the fact that Robinson and Shoemaker were stockholders and directors in the Steam Packet Company, as well as in the Powhatan Company, and participated in the transactions between the two companies, with certain interests in other companies, supposed to be interested, would seem to constitute the main foundation for the principal charges of the bill. And if it be true, as charged by the plaintiffs that the two defendants, Robinson and Shoemaker, acting for and in behalf of the Steam Packet Company, did purchase the stock in the Powhatan Company, and procured themselves to be elected directors therein, for the purpose of getting control of the management of that corporation,-and by that means to make it subservient to the interest of rival companies, or with the design of making insolvent and utterly breaking down the .corporation altogether, and thus getting rid of competition, no more flagrant fraud could be perpetrated ; and there can be no question but that for all loss to the company or its stockholders, resulting from the carrying out of such device or contrivance, the guilty parties should be held responsible to the fullest extent allowed by the law. Not only would there be incurred a personal responsibility by the directors or agents participating in the wrong, but, if such a scheme were devised and executed at the instance or on behalf of another corporation, deriving its powers and franchises from the State, such conduct would be a fraud upon the State; and in addition to incurring civil liability for the injury done such conduct would subject the offending corporation to the penalty of misurer or abuser of its franchises. A corporation cannot be allowed to do indirectly and covertly what it is not authorized to do directly and openly.”</p> <p>“Such is the law as applicable to the case as stated in the bill. But, if upon the proof, there is, a failure to establish the fraudulent design or purpose alleged to have characterized the various acts and transactions, done and instigated by the two directors named, the whole foundation fails. For we have seen, mere indiscretion, want of skill or foresight or mistake of judgment in the conduct of the affairs of the corporation, afford no ground of personal liability on the part of the directors.”</p> <p>“And upon the question of the fraudulent intent or design charged, though it be true that these two directors represented both corporations — in the one, being two of a board of eight directors, and in the other two of a board of six directors— this fact alone, while it should subject their conduct to rigid scrutiny by the Court, does not afford ground of presumption against the legality and the fairness of the dealings and transactions between the two companies. The two companies were certainly competent to contract the one with the other, and the two directors whose conduct is in question were interested in both companies, and by their relation to and official positions in them, they owed duties and were bound to be faithful alike to both. Therefore, while acting within the scope of the powers delegated to them by the stockholders of the corporation, there is no presumption of illegality or unfairness in their dealings and transactions between the two companies. They were the chosen agents of both, and to be successful in any attempt to impeach the validity of their acts, with a view of making them personally responsible either to the corporation or to the stockholders there must be distinct charges of misconduct fully supported by proof. Adams Mining Co. v. Senter, 26 Mich. 73; U S. Rolling Co. v. Atlantic & Great Western R. Co., 34 Ohio St. 450.”</p> <p>“This case is altogether unlike that of a trustee, agent or director bargaining in a matter of personal advantage to himself individually, with the party reposing the confidence in him, and where it is incumbent upon him to show that a fair and reasonble use has been made of that confidence ; as in the cases of the Hoffman Steam Coal Co. v. Cumbld. Coal & Iron Co. 16 Md. 456; Cumbld. Coal & Iron Co. v. Parish, 42 Md. 598; Jackson v. Ludeling, 21 Wall. 616.”</p> <p>The auditor has quoted thus fully from the above case, because not only the principles of law laid down appear applicable to the present case but also because the conclusion the Court came to on a very similar state of facts in that case are the same that the auditor feels compelled to arrive at in this case.</p> <p>In the account which the complainant has submitted to the auditor, as embodying his claim, the items are substantially as follows :</p> <p>xst. For business conducted from Oct. xst,</p> <p>1893, to Dec. 1st, 1894......$254,262 66</p> <p>Interest Dec. 1, ’94, to Nov. 1, 1901. . . 104,247 65 $358,510 31</p> <p>(This claim covers the period immediately succeeding the fire at the Brush Works and is a claim for the use of part of the U. S. Works during that period, but for which use the Brush Company has paid thesumof...........13,233 55</p> <p>Interest on which from Dec. 31, ’94, to Nov. i, 1901, was........ 5,425 75 18,650 30</p> <p>Amount forward....... $339,851 or</p> <p>Amount forwarded...... $339,851 01</p> <p>2nd. For money collected from North Avenue Railway, &c., from Jan. 1st, 1892, to June 30, ’93. 8,969 08</p> <p>Interest June 30, 1893, to Nov. 1, 1901........ 4,484 54 13,453 62</p> <p> </p> <p>Much of the testimony supposed to support the claim for the items 2nd and 5th is found in the case of Davis et al. v. United States Electñc Pozver and Light Company et al., and where these very questions here raised have been thoroughly thrashed over by the Court in its opinion, 77 Md. 35.</p> <p>For while there is a nominal change of parties, the complainant Davis, in the one case, having by a trade of United States Company stock for Viaduct Manufacturing Company stock, transferred his stock to the present complainant Cannon and thus although the matters may not strictly be considered res adjudicata, yet the facts being the same, although the parties are nominally different the decision must be the same in this case as in the Davis case except as to such new matter as may have been introduced since then.</p> <p>Item 2nd. The matter of the transfer of the contract for serving power to North Avenue Railroad from United States Company to Brush Company is fully considered by the Court in Davis v. United States Company, and the conclusion arrived at that the contract was “lost by a policy which was adopted by the officers of the United States Company, inaugurated for the benefit of that company,” and exonerating the Brush Company from any fraudulent attempt to injure the United States Company by making an independent contract with the North Avenue Company for service. The present claim, by simply extending the period of time for which the claim is made, seeks to open that question anew. If, however, as decided in Davis v. United States Company, the Brush Company had a perfect right to make the contract with the North Avenue Company, it is difficult to see how any claim can be set up against that right now. The contract however subsequently entered into between the Brush Company and the United States Company whereby the United States Company was to furnish the current and receive in payment 66 per cent of the amount received by the Brush Company from the railroad may in this case, which is a bill for an accounting, be a matter of inquiry. This contract and the rate of 66 per cent appears to have been agreed upon after a consultation between the officers of two companies, at a meeting of the executive committee of the United States Company at which Mr. Baldwin and Dr. Whitridge appeared to act on behalf of the Brush Company, and Mr. Clark who presided and Mr. Keilholtz who was present but not a member of the board appeared to advocate the interest of the United States Company, Mr. Keilholtz relates what occurred, Davis case testimony, p. 46, as follows : “A general discussion as to the cost of operating the North Avenue Railway Company’s generators at the station was entered into for the purpose of determining the proper proportion of the receipts from the said railway company that are due the United States Electric Power and Light Company for operating these generators for the Brush Electric Company.”</p> <p>Dr. Whitridge offered the following resolution which was seconded by Mr. Baldwin: “That the United States Electric Power and Light Company agree to operate the railway generators for two-thirds of the total amount charged the North Avenue Railway Company on account of this service, which proposition will be acceptable to the Brush Company. Mr. Clark objected on the ground that the United States Electric Power and Light Company would not receive sufficient compensation for the service rendered. The vote was as follows : ayes, Whitridge and Baldwin, nay, Clark, and the motion was carried.” Mr. Keilholtz stated to Mr. Clark that he, Keilholtz, thought a ten per cent collection would be a proper charge to pay the Brush Company, Q. 123, p. 47, Davis case. See also Clark's testimony, 31 Q., p. 101, Davis case.</p> <p>The contention on the part of the complainant is that as the above resolution was carried by the majority of the committee representing the Brush interest, the presumption is that it was unjust to the United States Company. The Court, however, in speaking of this transaction, says : (Davis v. United States Electric Poiver and Light Co., 77 Md. 48.) “ The proof leaves it somewhat in doubt as to whether that company ” (United States Company) “ incurred loss in supplying the power under the new contract; the weight of the evidence, in our opinion, being that it did not. But it is shown that no complaint was ever made to the Brush Company or to any one, that such was the fact.” The United States Company continued to operate under these terms and to receive the 66 per cent of money paid, and the auditor therefore does not see any reason, which would authorize him in reforming this contract.</p> <p>The 5th item, being for money received from various customers of the United States Company taken from it by the Brush Company. This claim appears to be the same discussed by the Court in the Davis case, pp. 45 — 46 of 77 Md., in reference to the order that all applications for lights should be referred to Mr. Tudor, secretary of the Brush, as they had formerly been referred to Mr. Baker, general manager of both the Brush and the United States Company, and the charge is that Mr. Tudor refused to allow the United States Company to have such lights as justly belonged to it. The Court says on p. 46, “ We do not undertake to pass upon the correctness of Mr. Tudor’s decision, in each of the cases mentioned in the testimony, so referred to him by the secretary of the United States Company; it is sufficient for this case to say that we find nothing that would justify a Court in pronouncing that he was-influenced in his decision by such motives as were discreditable to himself, or detrimental to the interest of the stockholders of the United States Company,” and the auditor has found nothing in the evidence taken since the Davis case, to show any fraudulent interest or injustice in the dealing on this behalf between the two concerns.</p> <p> The First Item of the Account. </p> <p>Going back now to those items in the account asked for by the complaint, and which are based upon the occurrences and the facts involved in the Davis case.</p> <p>The first item asks an allowance of principal with interest, less credits, of $358,510.31, being proceeds of the business conducted from October 1893 to November 1894. This claim is based upon the following facts :</p> <p>On October 13th, 1893, the Brush Company’s works were practically destroyed by fire, and the Brush Company sought by whatever means practicable to immediately furnish lights to its customers, many of which lights were of extreme necessity, such as the arc lights furnished to light the city. Some of these lights were in the emergency, given to the Maryland Electric Company to furnish current over the Brush wires and poles, for which the Brush got no compensation, but the Maryland Company collected direct from the city for the service, and power was gotten to run a 60 light brush machine from McElderry’s wharf, but what compensation was paid for this power does not appear. The main power for some time after the fire came from power furnished by the boilers and engines of United States Company, to Brush electric machines installed by the Brush Company in United States Company’s works, and the charge is :</p> <p>That immediately after the fire the Brush sent word to the United States Company not to take any more lights until they heard further from them, and that the Brush Company proceeded to install its electrical machines in the United States Company’s works and put blowers on the boilers and thus stimulated them beyond their normal capacity to the great injury of them and their engines, and thus served the Brush Company’s customers. It was subsequently arranged some time in the spring of 1894, following, that the Brush Company would pay for this power'at the rate of $1,500 per month. This amount it is charged was grossly inadequate, and that as the Brush Company’s earnings were almost entirely realized after the fire, from currents generated at the United States Company’s works, that its whole gross income from October 1893 to November 1894, belongs to the United States Company, less what has been paid them, some 13,000 odd dollars. Upon the theory that the burden of proof is on the Brush Company to show what part of its earnings came from the power furnished from United State’s Company’s works and what from other sources if any, and failing in so doing the largest sum is to be charged against them. That furthermore at the time of the fire there was claimed as due the United States Company $30,000, $15,000 of which was loaned to the Brush Company and that it was the duty of the Brush Company, immediately after the fire, instead of putting its electrical machines in the United States Company’s works to have purchased with this money electric machines for the United States Company.</p> <p>First as to the charge that the United States Company was ordered by the Brush management to take no more lights until they heard further from them. It would appear from the complainants own witnesses that the United States Company had but little capacity to furnish many more lights than it was furnishing at the time of the fire. Carmady testifies, page 46, Examiner’s testimony, that the capacity of the United States machines, including two 20-light machines which could be run on either arc or incandescent lights, but were in the fall of 1893 run on incandescent lights, was about 400 arc lights. (Ans. 12, 13 and 14 Q., page 46 Examiner’s testimony), and that in October, 1893, they furnished 344 Saturday night lights, 16 Q.</p> <p>It would thus appear, that on Saturday nights, at least, the works were furnishing to .its customers lights, if not fully, nearly up to its capacity, viz : 344 arc lights and two 20-light machines which were running on incandescent lights, which would make “about 400” arc lights, the full capacity of the works.</p> <p>Further, the complainant’s witness, Georgia C. Bowen, clerk and book-keeper of United States Company, testifies : “The day after the fire, there were a good many calls for lights, which we did not as a general thing supply, but in some cases we did. For two reasons, one was we had an order from the Brush Company not to do anything in the matter of taking lights until we heard further from them, and the other was, it was the fall of the year, and we were full of lights, and I don’t think we had much room to take any. The company was of small capacity.” (7, 8, 9 and 10 Q., page 83, Examiner’s testimony.)</p> <p>As to the whole of the service, being rendered by the United States Company’s station, from October 1893 to November 1894, or for any great part of that time, whereby alone the Brush Company was able to furnish current from which it received any revenue. As stated above, it was testified to that it installed a 60-light machine at McElderry’s Wharf. The defendant’s witness, Slemons, testifies that he was employed at the Brush works prior to and after the fire, and that inside of three weeks after the fire the Brush Company at its own works had two engines going, capable of and driving five hundred horse-power ; that there were added and going, before the end of the year, one engine capable of driving four Brush machines, of 60 lights’ capacity, which would be about 240 horse-power, and one engine of an incandescent machine of 124 horse-power. (Auditor’s additional testimony, pages 2 and 3.)</p> <p>The complainant's witness, Tenley, states that it was between five and six weeks after the fire before the Brush works furnished any current. (Auditor’s additional testimony, page 8.)</p> <p>It further appears from the testimony that from time to time in 1894, the electric machines placed in the United States Company’s works by the Brush Company after the fire were removed and installed in the Brush works, at just what dates these machines were taken out of the United States Company’s works does not appear. But the question is what was a reasonable compensation to be paid the United States Company for the power furnished to run the Brush Company’s machines, so that the Brush Company could serve its customers over its own wires, and whether the rate of $1,500 per month paid by the Brush Company for this power was a reasonable one. The manner in which this proposition to pay $1,500 a month was viewed by those representing the minority and adverse interest in the United States Company furnishes the best evidence of its reasonableness. The complainant, Cannon, testified that he was present at the meeting when this proposition was made, and that he asked if they could not make it $1,550 a month. (Examiner’s testimony, Ans. 13, page 3.) That Mr. Clark thought the allowance entirely too low, (Ans. 18) “And as he thought so, I thought so too, and I made the proposition to try and get $50 more and failed.” (Ans. 20 Q.) It would thus appear that the complainant himself only asked for a slight increase over the price named and paid.</p> <p>There is a further claim that it was the duty of the Brush Company, representing as it did the controlling interest in the United States Company immediately after the fire, to have purchased, with whatever amount of money was to the credit of the United States Company, machinery and installed it in United States Company, so that the United States Company could have served the Brush Company’s customers who applied to it immediately after the fire. It is somewhat uncertain just how much money there was to the credit of the Brush Company a.t that time, whether thirty thousand or twelve thousand, but it is alleged, see Plaintiff’s Exhibit, Examiner No. 1, (newspaper article), that it was thirty thousand dollars and that fifteen thousand dollars was loaned to the Brush Company, some, but how much is not stated,' on notes which had been redeemed from time to time, and some on call of long standing. As to the remaining fifteen thousand, Cannon states, that at the time of the meeting to which the said newspaper article refers, a question came up in reference to the ground rent on the United States Company’s works then coming due and could be redeemed out of the funds of the company. (Examiner’s testimony, page 5, Ans. 28). It appears that this ground rent was so redeemed, and the question is was the fact that the Brush Company did not take the money used in redeeming this ground rent, and return whatever amount it held on call, and pay the notes given to the United States Company; and install machinery in the United States Company’s works so that the United States Company could reap the full benefit of the Brush misfortune ? As stated in the opinion in Booth v. Robinson, 55 Md., the common directors had duties to both companies which they must observe and to sacrifice the interest of either company to the other would have been a breach of the trust reposed in them. It could not be supposed even if they had purchased at a large expense additional machinery for the United States Company that the common directors would have been justified in allowing the United States Company to have offered more than a temporary service to the Brush Company’s customers, and that when the Brush Company was able to resume business, the United States Company would not have been left with the machinery on its hands. It does not appear that the arrangement made with the Maryland Company, which the Brush found fully equipped to come to their assistance, was anything but a temporary arrangement, or that the Brush Company did not as soon as it was able, resume furnishing lights to the city.</p> <p>The auditor, therefore, does not find that the Brush Company as represented by its directors, was guilty of that crassa negligentia which would make it liable, in not using the funds on hand, at the time of the fire, to install new and additional machinery in the United States Company’s works, but rather that the weight of the evidence is that it acted wisely for the United States Company in not doing so under the circumstances.</p> <p> Third Item of the Account. </p> <p>“Gross profit on amount admitted by the Brush Electric Company to have been realized by it from the business of the Northern Central Railway Company taken by the Brush Electric Company from the United States Company.”</p> <p>It appears that the United States Company had been furnishing the Northern Central Railway with arc lights to light its yards, at 50c. per light per night, and Mr. Wilkins, manager of the railway company, applied to the United States Company for a reduction to 35c., but only obtained a concession to reduce to 45c. — apparently this was in the fall of 1894, after which the Northern Central Railway Company made no further efforts for a reduction from the United States Company, as it regarded this reduction as conclusive on the part of the United States Company. (Wilkins’ testimony before auditor, page 5, Ans. 7.)</p> <p>Subsequently, apparently in the fall of 1895, Wilkins’ testimony before examiner, page 64, Ans. 7, the Northern Central Railway Company contemplating a change from gas to incandescent lights at Union Station, requested a bid from the Brush Company and subsequently received a request from Mr. Morrison, the manager of the Maryland Electric Company, asking the privilege of bidding on this contract, and the contract was awarded the Brush Company. (Examiner’s testimony, page 65, Ans. 4 x-Q.)</p> <p>Mr. Wilkins states the reason why the railway company discontinued the service from the United States Company. (Examiner’s testimony, page 64, Ans. 9 Q., as follows:)</p> <p>“Several reasons; chiefly because the Brush Company furnished the arc lights at a lower rate, and because we contemplated introducing incandescent lights at Union Station, and we did not care to make arrangement with two companies for electric lighting, nor to continue the arrangement of receiving incandescent lights through another company; my understanding being that the United States Company only furnished arc lighting.”</p> <p>From the above evidence it would appear, that in the letting of this contract the railway company desired to deal with the company capable of furnishing both arc and incandescent lights, which latter class of lights the United States Company was not adequately equipped to furnish, and that both the United States Company and the Brush Company found themselves confronted with a competitor in the Maryland Electric Company, which competition the Brush Company was alone able to meet, and so made the best terms it could with railway company.</p> <p> Fourth Item of the Account. </p> <p>Gross profits on business admitted by the Brush Company to have been done by it on Pennsylvaniaavenue and Patterson avenue.</p> <p>1896 $138 64</p> <p>Interest 44 02</p> <p>-- $182 66</p> <p>The contention is, that the Brush Company ran its lines on Pennsylvania avenue and Patterson avenue which streets had been previously occupied by the United States Company, and that although the United States Company’s lines still remained the company’s business was damaged by the Brush Company paralleling its lines on these streets.</p> <p>Samuel Knouse, Examiner’s testimony, p. 39, says : “The United States Company had the first commercial line out Pennsylvania avenue (21 Ans.) and on Patterson avenue (22 Ans.) At present the United States has two arc circuits out Pennsylvania avenue part of the way; one wire goes to Fremont and Pennsylvaniaavenue and returns to Patterson avenue, then out Patterson avenue to Gilmor or Strieker.</p> <p>“ The Brush has a circuit out Pennsylvania avenue to Patterson avenue, Patterson avenue to Carey street, one arc circuit” (Ans. 23.) Why the Brush Company should be excluded from running its lines a part of the way on the same streets the United States Company had a line on, does not clearly appear to the auditor. The auditor has, therefore, not allowed this claim.</p> <p>Upon the whole view of the case the auditor finds that there is a “failure to establish the fraudulent design or purpose alleged to have characterized the various acts and transactions done and instigated ” by the directors representing the Brush Company, and he has therefore not allowed any of the claims presented by the complainant.</p> <p>The auditor was engaged seventeen days in examining the proceedings, reading the testimony and examining a great number of authorities, one of the parties having submitted for his consideration a brief of 7 r pages of typewritten legal cap, and the other, one of 9 pages, beside which the auditor had a great number of interviews with the respective counsel in regard to the case.</p> <p>The auditor has prepared, at the request of the complainant’s counsel Account X, but which he does not adopt as his own.</p> <p>The last account stated by the auditor, Auditor’s Account No. 2, filed February 28th, 1898, was ratified in part, and excepted to in part. These exceptions have never been heard, as they are dependent on the decision of the questions now brought before the Court. As the only funds in the hands of the receivers having been distributed by Auditor’s Account No. 2, to which exceptions are pending, as stated above, the auditor has not stated any account of expenses or Court costs, but appends a memorandum of his costs.</p> <p>All of which is respectfully submitted.</p> <p>R. F. Brent,</p> <p>Auditor.</p>

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

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

<p>Appeal from a decree of the Circuit Court for Prince George’s County (Merrick, J.)</p>

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

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

<p>Appeal from a decree of Circuit Court No. 2; of Baltimore City (Wickes, J.)</p>

<p>Amendment of Bill in Equity — Right of Surety on Mortgage Note to Pay the Debt and be Subrogated to Rights of Mortgagee— Tender.</p> <p>No appeal lies from an order allowing a plaintiff to amend his bill in equity under Code, Art. 16, sec. 16.</p> <p>When a party executes jointly with another a promissory note and a mortgage to secure its payment, that party is entitled to show by parol evidence that as between himself and the other maker of the mortgage note he was a surety, and he is consequently entitled to pay the note and be subrogated to the rights of the mortgagee.</p> <p>When a surety seeks to pay the debt guaranteed by him in order to be subrogated to the rights of the creditor, a payment into Court of the whole amount due under a bill to enforce the right of subrogation is a sufficient tender.</p>

<p>Appeal from Baltimore City Court (Dobler, J.)</p> <p>PlaÍ7itiff's 1 st Prayer. — If the jury shall find that the plaintiff rendered valuable personal services to and for the benefit of the late Catherine L. Staylor, during her life time, at her request, and shall further find that said Catherine L. Staylor, in consideration of said service, promised to compensate the plaintiff for said services and did not perform said promise, then the jury shall find for the plaintiff against the administrator of Catherine L. Staylor for the value of said services the agreed price if they, find any agreement upon this point, or what the said services were worth if they find no expressed contract price (not to exceed however the price claimed in the bill of particulars, with interest from the institution of this suit, in the jury’s discretion); provided, the jury shall find that said promise was made to take effect within three years prior to the institution of this suit. {Granted.')</p> <p>The defendant filed the following special exception to the plaintiff’s prayer :</p> <p>The defendant specially excepts to the plaintiff’s prayer because it ignores the bill of particulars filed in this cause; and because it would enable the plaintiff to recover on a quantum meruit and not on an express contract for two dollars and-a-half per week and would be a variance from the contract sued on. And the defendant also specially excepts the plaintiff’s prayer because there is no legally sufficient evidence of any promise to remove the bar of the statute of limitations. And the defendant also specially excepts to the plaintiffs prayer because there is no legally sufficient evidence that the defendant’s intestate ever promised to reward the plaintiff for her services. (Overruled.)</p> <p>Defendant's 3rd Prayer. — The burden under the pleadings is on the plaintiff to establish by a fair preponderance ofproof (a) that she rendered service to Catherine L. Staylor, deceased ; (b) that she rendered those services with the design of being paid for them in money ; (c) that at the time the said services were rendered there was an expectation on the part of said Cath. L. Staylor of paying for the same; and (d) that there was an agreement that the plaintiff should receive $2.50 per week for her services. {Rejected.)</p> <p>Defendant's ph Prayer. — In order to entitle the plaintiff to recover for any services rendered by her to the late Cath. L. Staylor, the jury must find that there was a design qn the part of the plaintiff at the time of the rendition of the services to charge for them in money, and an expectation on the part of said Cath. L. Staylor to pay for said services in money. And in determining whether there was such expectation on thé part of said Cath. L. Staylor to pay for said services in money and such a design on the part of the plaintiff to charge for them in money, the jury are to take into consideration the relative situation of the parties and all the surrounding circumstances. {Granted.)</p> <p>Defendant's 3th Prayer. — Unless the jury believe that the plaintiff has affirmatively shown by a fair preponderance of proof that the late Cath. Staylor made an express contract with the plaintiff by which she agreed to pay the plaintiff $2.50 a week for her services, the verdict under the pleadings in this case must be for the defendant. {Rejected?)</p> <p>Defendant's 6th Prayer. — There being no legally sufficient evidence to establish any contract, express or implied, on the part of the late Catharine L. Staylor to pay the plaintiff for any services shown by the evidence to have been rendered her, by the plaintiff, the verdict must be for the defendant. {Rejected.)</p> <p>Defendant’s jth Prayer. —There being no legally suffi cient evidence to show the extent of the plaintiff’s claim, the verdict of the jury can be for nominal damage only. {Rejected?)</p>

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

) Plaintiffs' Prayer. — The plaintiffs pray the Court to rule, that if the Court sitting as a jury shall find from all the evidence that the plaintiffs and the defendant corporation entered into the contract dated June 18th, 1901, offered in evidence in .this case, and that the plaintiffs furnished thereunder to the School Board, one of the city departments named therein, coal as directed and required by said board or its agent, and delivered said coal to several of the…

' Appeal from a decree of Circuit Court No. 2, of Baltimore City (Stockbridge, J.) In this case the promoters obtained options upon various properties for the benefit of the corporation, it being the basis óf all said options- and agreements that the value of said properties to the said' corporation, with an added cash capital of $ 500,000- was at the rate of $20 per barrel of annual output, and that, such properties should' be turned into said corporation at said rate.

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

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

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

<p>Repairs Made by one Tenant in Common After Death of Co- Tenant— Promissory Note Delivered as a Gift not Enforceable 'Against Estate of Maker.</p> <p>When one tenant in common of real estate makes repairs upon it after • the death of his co-tenant, his claim to be compensated therefor is not enforceable against the administrator of the deceased co-tenant.</p> <p>A promissory note executed and delivered by the maker to the payee as a voluntary gift cannot be enforced against the estate of the maker after his death, because such a note is a mere promise, without consideration, to make a gift.</p>

) The appellant is only responsible for such immediate loss or damage caused by the explosion as was reasonably in the contemplation of both parties at the time the policy was issued, unless at such time there were special circumstances known to and understood by them that would take the case out of the general rule. A policy of insurance is a contract and an action upon an insurance policy is an action ex contractu.

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

J.) Defendant's 8th Prayer. — That the measure of damages in this case, if the jury find for the plaintiff, is the sum of $25 per week from March 22nd, 1900, to May nth, 1900.

<p>Appeal from the Circuit Court for Allegany County (Stake, J.), where there was a judgment for plaintiff for $2,250.</p> <p>Plaintiff's Prayer. — If the jury find from the evidence- that • on or about the 8th day of July, 1901, Melville Fuller, under the age of 21 years, was killed by the cars of the defendant J. while operated by its agents on its road, and that the equitable plaintiff herein is related to him in the manner as set forth in the pleadings, and that the said killing resulted from the want of ordinary care and prudence on the part of the agents of the defendant, and not from the want of ordinary care and prudence of the deceased, directly contributing to the accident, that then the plaintiff is entitled to recover in this cause. (Granted.)</p> <p>Defendant's ist Prayer. — That the plaintiff has offered no evidence in this case legally sufficient to entitle it to recover and their verdict must be for the defendant. {Refused.)</p> <p>Defendant's 2nd Prayer. — That there is no evidence in this case of any such negligence on the part of the defendant in the discharge of its legal obligations to the deceased, or to the equitable plaintiff in this case, as entitles the plaintiff to recover in this action. (.Refused.)</p> <p>Defendant's 3rd Prayer. — That if the jury find from the evidence that at the time of the accident sued for, the defendant was operating a railroad through the suburbs of the village of Luke, Allegany County, and that immediately west of its main track it had a siding opposite the house of a certain Mr. Rogers, and that the boy, Melvin W. Fuller, for whose death this suit is brought, was standing on the company’s right of way between the fence of said Rogers’ lot and said siding, waiting for a train of cars which was then on said siding to move off the same so that he could cross the same with a bucket of water to the automobile works on the east side of said railroad, and that while said boy was standing there part of the cars of freight train of the - defendant which had gone up the track about a quarter of a mile, broke loose from the train to which they were attached and ran back down the main line of said track and that just before said cars broke loose and ran back said train which had been standing on said siding was pulled onto the main track going east by the servants of the defendant and had all gotten off of said siding onto said main track except one car and the caboose on the rear end of said east-bound train, and that said cars so running back on said main track sidewiped and struck said caboose and knocked it over against and upon said boy, where and while he was so standing on the west side of said siding waiting to cross the track, whereby said boy was killed, still plaintiff is not entitled to recover, even though the jury shall further find that at the time he was waiting to cross said track and for a long time before there was a path or walk across the right of way of the tracks of the defendant from the property of said Rogers over to said automobile works, over which persons together with the said boy were accustomed to pass and repass and over which said boy on said occasion was waiting to pass, and even if the jury shall further find that none of the cars which broke away from said train and ran back on the main track were equipped with air-brakes, or connected up with air-brake connections, with the balance of said train from which they had just broken. (Rejected.)</p> <p>Defendants ph Pray ex. — That if the jury believe from the evidence that the deceased, Melvin W. Fuller, was, at the time of the injury, which caused his death, on the right of way of the defendant, with a view of crossing the said railway by a path over the same used by said Fuller and others with the acquiescence of the defendant, but not a public way or crossing, then the defendant was under no obligation to the said Fuller, or to the equitable plaintiff, in this case to equip its cars With air-brakes, and even if they believe from the evidence that the defendant did not have its cars equipped with such brakes and that the injury and consequent death of the said Fuller was the result of the failure of said defendant to have its cars so equipped, yet the plaintiff is not entitled for that reason, in this action. (Granted.)</p> <p>Defendants yth Prayer. — That if the jury find from the evidence that the deceased, Melvin Fuller, at the time the fcaboose was thrown over on him as shown in the evidence, was standing outside the Rogers’ fence and on the right of way of the defendant, then the plaintiff is not entitled to recover in this action although the jury may further find that the injury and consequent death of Fuller was the result of the defendant not having air-brakes on the cars that became .detached from the train, or the result of defective appliances or machinery. (Granted.)</p> <p>Defendant's 6th Prayer. —That under all the circumstances of this case, the defendant owed no duty to the deceased, or to the equitable plaintiff, to equip its cars, or any of them, with air-brakes, m the running of its trains, and even if the jury believe from the evidence that the defendant failed so to equip its cars and that the death of the said Fuller boy resulted from that failure, yet the plaintiff is not entitled to recover. {Refused.)</p> <p>. Defendant'syth Prayer. — That even if the jury shall find that the cars which broke loose and ran back were not equipped with air-brakes and if they had been so equipped they would have stopped and run back resulting in the collision testified to by the witnesses, yet that the .direct and proximate cause of the accident was the parting of the cars from the train and not the failure to have said cars equipped with air-brakes, and there being no sufficient evidence in this case to show that the parting of the train was due to any negligence of the defendant, the plaintiff is not entitled to recover. {Refused.)</p> <p>Defendant's 8th Prayer. — That if the jury find that but for the intervention of the train going east, the cars which broke off and ran back would have gone on down the main track of the defendant’s railroad and done no injury to the deceased, then the plaintiffs are not entitled to recover, even though the jury may find that the cars which ran back and struck the .intervening train were not equipped with air-brakes, unless, the jury further find that in drawing said east-bound train out of the siding on to the main track, the servants of the defendant were guilty of negligence in so doing. {Refused.)</p> <p>Defendant's yth Prayer. — That there is no evidence in this case legally sufficient to show that the servants of the defendant were guilty of any negligence, under the circumstances, in drawing said east-bound train from the siding on to the main track or that the parting of said train was in any way caused by the negligence of the defendant. {Refused.)</p> <p>Defendant's ioth Prayer. — That if their verdict be for the plaintiff that in awarding damages they are not to take in consideration the mental pain and suffering of the mother of the deceased in consequence of the death of the child, and are not to give punitive, vindictive or exemplary damages against the defendant, but in estimating the damages they are confined to the pecuniary damage sustained by the equitable plaintiff and are to give to her such a sum as the jury may believe from all the evidence in the case, will be an adequate compensation for the loss of her son’s services from the time of his death to the period when, if he had lived, he would have attained the age of twenty-one years. (Granted.)</p> <p>The only controverted fact of importance was, whether the boy, when hurt, was on the right of way of the appellant or inside Rogers’ yard fence. There was testimony tending to support either contention but we respectfully submit that the decided preponderance of the evidence went to show that the boy was on our right of way when struck. There was error in rejecting our 3rd prayer. The Court was right in ruling that if the boy was on our right of way we owed him no duty to have air-brakes. But on what theory can it be held that we owed a person, situated as he was, the duty to guarantee that our coupling would not break. On the theory that he was on our right of way, to which we were entitled under the evidence, the boy was a mere licensee. He was not there by right but by our license. What duty did we owe him then ? Here was a boy on our right of way about to cross at a place not a crossing; a mere trespasser but for our license. He was 18 feet from our main track. His presence where he was, was wholly unknown to the men operating the train. They are a half-mile off with no knowledge that anybody is on the track below. An unexpected accident happens, the cause of which is not shown. The train parts and negligence is to be presumed against us from the parting alone. And this negligence thus inferred, is to be coupled with a duty to a boy standing on our right of way 18 feet from our track, a half-mile below, so as to work out our responsibility! The law contains no such doctrine. Of course, if our employees saw the boy on our track or in a dangerous position anywhere, and had failed to do all they could to prevent injuring him we would be liable. We owe this duty even to a trespasser. But are we required to guarantee to a boy situated as this one was, that our train, a half-mile up the road, would not break and run down and strike another car on another track, and hurt the boy. That is the question and the plain question submitted by our 3rd prayer and its rejection was clearly error.</p> <p>It is contended by the appellee, that to a person so situated, we owed the duty of operating our freight trains, not only with all the cars equipped with air-brakes, but with all the air-brakes on all the cars coupled up and charged with air. If we owed that duty to that boy, then we owed the same duty to -every loiterer who might stand along near the edge of our right •of way from Cumberland to Elkins. They could stand along there and take all the chances of accident, incident to operating long trains, by collision or otherwise, and however remote the probability of such accident might be, we were bound to anticipate it, by the most expensive appliances and the most inconvenient and burdensome methods of operating our trains, and if we failed and one of these loiterers got hurt in the most unexpected and unforeseen way, still we are liable to him. He is not bound to take any care of himself. His opportunities to anticipate danger are just as good as ours, yet no contributory negligence is to be charged against him. He can stand there and take whatever chance of injury there is and hold us liable, although we never knew of his existence much less of his danger. The rejection of our sixth prayer goes that length.</p> <p>The thing finally done is too remote in causal connection from the thing complained of to raise up any duty in any one to anticipate it. The cars might have broken, their brakes might have been absent, and still no harm whatever would have come to the boy but for the intervening car and the other extraordinary and wholly unexpected occurrence, of a car being knocked from an intervening track clear over in Rogers’ yard. And in this aspect of the case and under these circumstances we owed no duty to the boy standing eighteen feet from our track in Rogers’ yard, to charge all our cars with air-brakes, simply because the sequel now shows that it was possible for our cars to break and run back, and it was possible that a train should just then be pulling out from a siding on our main track, and it was possible that it should just at that moment be struck by the returning cars, and it was possible that a car should be knocked clear over in Rogers’ yard, and it was possible that a boy should just at that moment be there and get killed. The jury should have been instructed that under all the circumstances of the case we owed no duty to the boy to have cars equipped with air-brakes and the rejection of our sixth prayer was therefore clear error.</p> <p>Did the parting of our train point by necessary inference to any particular or specified negligence or want of care on our part? If so, what negligence? In what particular? Did the bare breaking of the train necessarily mean that our trainmen had operated the train in a negligent manner ? Was that the particular of negligence indicated with “reasonable probability” by the accident ? Or did it indicate that there was negligence in putting the train together, or in a failure to inspect the cars, or that the coupling was defective to our knowledge, or that the road-bed was out of order, or any one of a dozen other causes that might be imagined. Which one of all these possible causes does the accident itself point out with “reasonable probability”as the particular cause which produced the accident. In Hawser’s case, 80 Md. 146, the falling of the ties enabled the Court to assign the cause with “reasonable probability” to careless loading. Can this Court assign the cause of the breaking in this case with the same reasonable probability, to one or more of the above possibilities, or to any other that might be suggested by the appellee ? We earnestly insist that it cannot; that here the bare breaking points to a large number of equally possible causes and no one '“reasonably probable” cause, some of which would be due to our negligence, and others -not at all so ; and that in short’to attempt to assign the cause in this case from the mere fact of breaking, would be to relegate the whole matter to pure guess work without any “reasonable probability” whatever to guide us, and in this particular therefore being widely different from Howser's case.</p> <p>The plaintiff must prove circumstances from which it may be fairly inferred that there is a reasonable probability that the accident resulted from our negligence and must’also show with reasonable certainty what particular precaution should have been taken to avoid the accident. P. W. & B. Ry. Co. v. Stebbing, 62 Md. 504.</p> <p>We contend, therefore, that if the mere breaking did not furnish the lower Court with any reasonable probability as a guide in determining the particular in which we were negligent, then it was error to throw the whole matter into the field of mere conjecture and leave it to the guess-work of the jury; a guess-work in which they were permitted to range over the whole field of surmise hunting for some possibility of negligence ; each juror possibly assigning a different negligence but all concurring in the belief that there was negligence of some sort, arid thus working out our liability by pure speculation. And this too, while at the same time the mere fact of the breaking furnished just as reasonable a probability that it occurred from causes not due to our negligence at all; such as a defective coupling not known to us after proper inspection; a draw bar with a latent imperfection in it; a sudden, unavoidable twist of the train, and many other causes equally probable, equally surmisable and equally innocent of negligence.</p> <p>If we are right in the above then the maxim “res ipsa loquitur" does not apply to this case ; the jury should have been furnished with some proof as to the cause of the breaking showing, or at least tending to show that the particular cause was due to some negligence on our part, and there being no evidence of that kind, the cause of the breaking should not have been left to the speculation of the jury. This, however, was done by the rejection of our seventh prayer, and by the rejection of our third prayer, even on the supposition that the boy was on our right of way as a licensee. If the breaking of the train was the proximate cause of the injury, and the absence of air-brakes merely one of the incidental or subordinate causes, and if there was no proof of negligence in the breaking, as the prayer asked the Court to say, and none can be presumed as we have contended, then our seventh prayer should have been granted and its rejection was substantial error, and there was also error in rejecting our third prayer.</p> <p>There was no ground upon which our ninth prayer could be rejected. In a case where everything was being left to the jury and they were permitted to presume and guess at negligence wherever it could be imagined or suggested, they may well have presumed negligence against defendant in drawing its north-bound train on to the main track. We were therefore entitled, at least, to have this point settled by the Court and not left open to the speculation or surmise of the jury. There certainly was not a scintilla of evidence of any negligence on our part in this respect. An examination of the whole record will show this. Then why should the jury not have been so instructed and this point settled.</p> <p>From the facts the law raises a presumption of negligence. The mere breaking of the train, at a point where the pressure was slightest, and its subsequent collision with the caboose, could not have happened if due caution had been exercised in connecting the train.' If the coupler had been adequate it would not have broken. If proper provisiou had been made for such an accident by air-brakes the collision could not have taken place. Under these circumstances the burden is upon the defendant to show that it exercised due caution and employed the appliances requisite to protect life and property. Having shown that the train broke through the use of a rotten coupling, and that in the resulting smashup the boy was killed through factors wholly in charge of the defendant, a presumption of law arises that the defendant has neglected some duty, wherefore it imposes upon it the burden of showing that it was free from fault. Now the boy was not at fault; all the instruments of causation were under the dominion of defendant; the boy was killed by the property and acts of its servants ; now, why under these circumstances should not the burden of proof be shifted upon the defendant to explain if there was any nonculpable cause of the death ? It wholly failed to explain. Howser's case, 80 Md. 146.</p> <p>The second mode of proving defendant’s negligence is by the direct evidence of attending circumstances. Here was a train, according to defendant’s witness, Biggs, of forty-nine cars, thirty-three of which were loaded with steel rails. The sixteen empties were in the rear, and the whole train was being pulled up the Alleghany mountains by two heavy freight locomotives pulling from the front. According to witness Pagenhardt it was the proper thing to have one engine behind. Allowing each car a weight of twenty tons, and the loaded ones a weight of forty tons, we have a total weight of 1950 tons in the train. The tensile resistance upon the couplings at the front of the train must therefore have been 1950 tons. Only eight empties at the rear broke away ; hence the the tensile weight upon the coupling or drawhead that gave way could only have been about 160 tons. Could a coupling that refused to bear less than one-tenth the weight endured by such appliances on the front of the train have been anything else than rotten ? Couplings must be made to haul loaded trains. This one refused to haul eight empties. Was it not the duty of the defendant to have inspected this car and train ? There is no pretense that the car was ever inspected. But it was incumbent on the defendant to do so, and failure to provide against defects by inspection is positive negligence, even to an employee. The defendant owed this duty to the boy, it owed it to the public and it owed it even to its own servants. Baily v. R. W. & O. R. R., 139 N. Y. 302; Durkin v. Sharp, 88 N. Y. 225; King v. Ohio, etc., R. R., 14 Fed. Rep. 277; Richmond & D. Ry. Co. v. Elliot, 149 U. S. 266; Keith v. New Haven, etc., 140 Mass. 175.</p> <p>The second element of positive negligence on the part of the defendant consists of the failure to have in working order air-brakes sufficient to control the train under circumstances of unforeseen necessity. The witnesses all say that if the train had been so fitted with air-brakes, in working order, the broken section would have come to an instant stop by the automatic action of the brake instead of running away and killing the boy. It is a general principle that common carriers must use reasonably safe appliances in the conduct of their business to render life and property free from danger. It has been determined over and over again that when appliances come into general use and their practicability is finally ascertained it becomes a duty to employ them. On railroads for example, steam gages, water gages, safety valves, bells, whistles and other appliances must be employed if the operator would protect itself from the law of compensation for injuries. This is now quite as true of air-brakes. And independently of the Act of Congress it has been so determined. Greenloe v. So. Ry. Co., 41 L. R. A. 399; Troxler v. So. Ry, Co., 44 L. R. A. 313; Halden v. N. C. R. R. Co., 55 L. R. A. 784.</p> <p>But the defendant is admitted to be an interstate railway, in fact this very train had started at Ridgely, W. Va., and proceeded to Luke, Md., when the accident occurred. It is, therefore, subject to the Act of Congress of March 2nd, 1892, known as the Safety Appliance Act. But to what purpose is it that Congress compels the introduction of these safety appliances if defendant and its servants deliberately refuse to employ them? It is not contended that the runaway cars were not fully equipped. They were equipped as ninety-nine per cent of cars of this country were equipped at that time as shown by Millholland. But the defendant’s servants neglected to couple them up, so that they were useless for the purpose designed by the Act of Congress for the protection of prop-' erty, life and limb.</p>

J., and Holland, J.) The bill of interpleader in this case, filed by the Supreme Conclave, Improved Order of Heptasophs, set forth the following by-laws of that order: “280. The benefit may be made payable to any one or more persons of any of the following classes only : Class First. — Grade first. Member’s wife. Grade second. Member’s children. Grade third. Member’s grand-children. Grade fourth. Member’s parents. Grade fifth. Member’s brothers and sisters of the whole blood.

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

<p>Appeal from the Court of Common Pleas, (Harlan C. J.)</p>

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

) Plaintiffs' 2nd Prayer. — If the jury find from the evidence that the road known as Harrison street extended was an existing public road or highway at the time of the construction of the railroad of the defendant at that point and that said road continued to be a public road or highway up to the time of the accident complained of, and if they further find that the said highway was severed by the construction of an earthen embankment across the same upon which was placed…

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

Plaintiff's ist Prayer. — If the jury shall find from the evidence that the plaintiff George W. Edger was arrested by the defendant on the ioth day of January, 1901, without a warrant issued by an officer having competent authority to issue any such warrant and that the plaintiff was not arrested in the commission of any crime, and subsequently detained against his will then the verdict must be for the plaintiff. {Rejected.) Plaintiff's 2nd Prayer. — If the jury shall find…

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

<p>Negligence — Horse Frightened by Steam Traction Engine on Highway.</p> <p>Code, Art. 27, sec. 259, requires that every traction engine when propelled by steam upon any public road shall be accompanied by at least two men whose duty it shall be so to conduct the engine as to cause as little harm as possible to horses on the road and to render all reasonable assistance to persons driving, and to keep the engine stationary when a horse is alarmed by it. Plaintiff’s wife was driving a dog cart on a highway when her horse became frightened by the noise of defendant’s Steam traction engine which was being propelled along an intersecting road-about one hundred yards distant. In consequence of the fright the horse ran away and caused the injury for which this action was brought. Plaintiff’s evidence was that the horse was gentle and saw the engine which frightened it; that there was no one in advance; that plaintiff’s wife called to the man in charge of the engine for assist- ■ anee but they gave none and did not stop. Held, that the evidence was legally sufficient to authorize the jury to find that the. injury was caused by the negligence of defendant’s agents.</p>

<p>Appeal from the Orphans’ Court of Carroll County.</p> <p>The cause was submitted to the Court on brief by:</p>

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