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counsel, and admitted by the court, as de inducement, and that he did not himself posed to by Wm. E. Hollyday, a justice of "tell him that he (the accused) ought to conthe peace, who took the same down, appears fess, or advise him to confess." It was to in the record as follows: “Feb. 6, 1902. I the admission of this confession that the examined him. I asked him why he shot first exception was taken on behalf of the Carrie Price. He said: 'I shot her because accused (the appellant). There was no ershe wouldn't do as I wanted her to do, and ror in the ruling of the court upon this excursed me and called me a damn liar. Then ception. The foundation laid by the state I asked her to get me my things, and I in its preliminary inquiries was quite suffiwould leave, and Carrie Price said I knew cient to justify the admission of the confeswhere my things were, and I could get them sion. The confession admitted, and which myself; that she was not going to get them. action was approved by this court, in the Then she left the house. I went after her, case of Ross v. State, 67 Md. 286, 10 Atl. 218, and asked ber to go home, and she said she was made under circumstances much more was not going home; she would go uptown likely to subject the accused to pressure and get an officer, and have some peace. than any appearing here. Then I went to the house and got my pistol.' The second exception of the appellant was I asked him what did he do then. He an taken to the admission of the evidence of swered: 'Carrie Price had $12 of my money,
the witness Dawson, who testified that he and Lewis asked Carrie for my [his] money. was a constable; that he was present when Q. Did she give it to you? A. Yes, sir. Q. the appellant made to the witness Hollyday What did you do then? A. I fired on her the statement which has been set out in contwo or three times—I don't know which nection with the testimony of that witness; and once after she fell. Q. What house was that the statement by the appellant was made Carrie at? A. Gussie Wheatley's. Q. How voluntarily; that there were no threats made, came you to take the pistol with you? A. nor "inducements or promises held out to I went and got it on purpose to shoot her him to make a statement"; and that he with. Q. What did you shoot Carrie for? “was with Mr. Hollyday the whole time"; A. Well, I was going with her, and she they “went together"--and was then asked, would go with other men. That was the after being .questioned on the part of the cause I shot her. Q. Was she your wife? | appellant as to the appellant's condition, and A. No, sir; but I thought she shouldn't go as to whether the appellant knew that the with other men.' The subscriber wrote this witness was a constable and that the witness while Lewis Green was stating it.” Before Hollyday was a justice of the peace, and offering this confession in evidence, the answering these two last inquiries affirmastate questioned the witness Hollyday as tively, to tell as near as he could what the follows, after proving that he was a jus appellant said in making his statement to tice of the peace, and that he went to where the witness Hollyday. The ground upon the prisoner was: "Q. Did he make any which the objection to this testimony was statement to you about the shooting? A. put was "because of the physical and mental Yes, sir. Q. Just tell the court whether it condition, as shown by Dr. Eckels," of the was freely and voluntarily made on his part. appellant at the time of the confession. AsA. It was. Q. Were any threats made suming this to be a legal ground of objecagainst him, or any inducements held out tion, if the basis of fact assumed existed. to him to make a statement? A. None at Dr. Eckels' testimony as to the mental and all. Q. Who requested him to make a state physical condition of the appellant was to ment? A. No one at all.” Then upon cross the effect that though he found him sufexamination this witness was asked: "Q. | fering greatly from shock when he first Did you take his statement at his request? was called to him on the day of the shooting, A. I asked him if he was willing to give a which was the 4th of February, 1902, and statement, and he said 'Yes,' and I asked that he was then unconscious, later in the him to give the cause of the shooting. He day he saw the appellant again, when his said be had a cause. That is the only cause condition was improved, and he had recovhe gave me. Q. Did you tell him he better ered somewhat from the shock, and was tell ? A. No, sir. Q. You didn't ask him to "partially” conscious; that the next morning tell? A. No, sir; I told him he was not he had recovered from the shock, and was required to incriminate himself." Upon fur conscious; and that on the 6th, the day the ther examination by the state he said: “He confession or statement was made by him, did freely and voluntarily make it (the state his "condition" of "mind was all right"; ment] himself. I was merely asking him, that his general condition was very much and he made it"-and further said that be improved; that he "talked very intelligently, did not offer the prisoner anything, nor as an intelligent man would talk in normal promise him anything, nor tell him it would mind"; and that he answered all questions be better for him if he would confess. In promptly and intelligently. With this testiall tbis he was confirmed in a negative way mony before the jury, there was no reason by Dr. Eckels, the attending physician, who for withholding the statement from them on testified to being present, and that he did account of the physical and mental condition not hear anything in the way of threat or of the appellant at the time it was made. He
was shown to be fully capable of making an şis, whatever the reason therefor, and though intelligent statement.
he used due diligence. The objection having been overruled and
2. The question whether the city was in de
fault because of such nonpayment was not a the evidence admitted, the witness testified:
dispute as to the meaning of a provision or “Squire Hollyday asked him in regard to it. clause of the contract, so as to be for the deHe said he shot her. He asked him what
termination of the water engineer. for. In the first place, he said he had a
Jones, J., dissenting. reason, or something that way. He went on
Appeal from Baltimore city court; J. Upand said that he couldn't live with her, and
shur Dennis, Judge, no one else should; he wouldn't let any one
Action by Schaub Bros., use of Benjamin else. That was about the amount of it."
H. Read, against the mayor and city council Upon further questioning he said, in sub
of Baltimore. Judgment for plaintiffs. Destance, that he had given all he could recol
fendant appeals. Affirmed. lect of what was said. Asked to state the
Argued before MCSHERRY, C. J., and exact language of the appellant, he answer
PAGE, PEARCE, ed: “That is about the substance of it. I
SCHMUCKER, and JONES, JJ. couldn't go over it word for word, for the life of me.” At this point the counsel for the
Wm. Pinkney Whyte and Olin Bryan, for appellant moved the court “to strike out the appellant. Frederick C. Cook, for appellees. testimony of this witness on the ground that he didn't state anything but the impressions PEARCE, J.: On June 18, 1901, the plainas he gained them from the language, and tiffs, dealers in coal, entered into a written did not give the language." The court over agreement with the defendant to supply cerruled this motion, and this action of the court tain departments of the city government, inis the ground of the third and last exception cluding the school board, with coal up to of the appellant. In this the court was clear April 15, 1902, to be delivered at such times, ly right. It was not necessary that the wit and in such manner, as provided in specifiness should be able to repeat the exact lan cations forming part of the agreement. This guage used, in order to testify. He did not contract has been complied with by both pargive mere impressions, but gave the sub ties, except as to the coal required for the stance of what was said, as far as he could school board. The approximate quantity rerecollect it, and this was sufficient. Worth- quired for the school board, as stated in the ington v. State, 92 Md. 222, 48 Atl. 355, 56 blue print attached to the specifications, was L. R. A. 353, 84 Am. St. Rep. 506. A com 6,290 tons, of which two-thirds was to be de. parison of what this witness said with the livered during July and August, and onestatement taken down by the witness Holly- | third as needed; but the school board reseryday will show that there is no divergence ed the right to order less than the estimated from that statement by the witness, in sub quantity, if less was needed. The plaintiffs stantial effect, as far as the recollection of made the first delivery July 16, 1901, and the witness allowed him to go.
continued to make deliveries up to August 29, Finding no error in any of the rulings of 1901, aggregating 2,101 tons, when they rethe court brought up by the exceptions, the fused to make further deliveries, alleging that judgment will be affirmed. Judgment af the defendant had broken the contract by firmed, with costs.
failing to make payment as provided, and had thereby discharged the plaintiffs from fur
ther liability under the contract, and this suit (96 Md. 534)
was brought October 28, 1901, to recover for MAYOR, ETC., OF CITY OF BALTIMORE the coal delivered, amounting to $11,062.35. v. SCHAUB BROS.
The defendant admitted the correctness of the (Court of Appeals of Maryland. Feb. 11, 1903.)
statement of coal delivered, and that it was
indebted to the plaintiffs in the sum of $5,CONTRACT-CONSTRUCTION-SALE TO CITYPAYMENTS-RIGHT TO TERMINATE.
326.42, but filed a plea of set-off, alleging 1. Plaintiffs' contract to furnish a city coul that the plaintiffs had broken the contract by for a certain period provided for monthly pay, refusing to make further deliveries, and that meuts, to be made on the basis of analysis of
they were indebted to defendant in the sum the coal; that at the end of the month, from the shipments during the month, the city chem
of $5,735.93 "for actual damage caused by ist would make an analysis, aud plaintiffs' bill the failure of the plaintiffs to fulfill,and carwould be adjusted in accordance therewith; ry out said contract, as shown by the statethat, if the analysis showed that the shipments
ment attached to this plea, and prayed to were not within the specifications, then when the next shipment was received an analysis
be taken as a part thereof.” Issues were would be made, and if the coal was not within properly joined on the pleadings, and the the specifications the shipment would be re
case went to trial before Judge Dennis, sitjected; and that the water engineer was to interpret the conditions of the contract and
ting as a jury. The amount admitted to be the accompanying specifications, and in case of due was paid before the actual trial, and a dispute his decision was to be final. Held, that verdict was rendered for the plaintiffs for monthly payments were of the essence of the $6,175.46, being the full amount claimed aftcontract, and, not being made, authorized plaintiff's to terminate the contract; and this
er deducting the payment made. The only though the city chemist had not made an analy: | exception taken was to the rulings upon the
prayers, and the only question thus present to look out for that yourself; we have only ed is whether the defendant is entitled to the to deliver the coal;" that they went again in set-off claimed.
September, and were told there was nothing The provisions of the contract material to for them, and that he then went to see the the consideration of the case are as follows: shippers, who replied, "We can't put up with Payments: "Payments will be made once a that, we must have money," whereupon, on month by each department for all the coal September 3d, they sent to the school board delivered to that department by the contract the letter of that date set out in the evidence, or during the previous month, and will be stating that both Mr. Owens and Mr. Mcmade on the basis of what the coal shows Gill had told them they were unable to pay on analysis.” Provision is made for taking them, because no analysis had been received samples of coal for analysis from each ship from the city chemist, and that they would ment made to any department during the not be paid until such analysis was received, month. "At the end of the month all the also stating that they had called on Prof. samples thus accumulated will be thoroughly Lehman, the city chemist, in reference to the mixed, and a quart preserving jar will be matter, and that he told them that with an filled with the mixture, labeled, and sent to extra force he could not furnish the analysis the city chemist. The city che list will, at required by the school board by Christmas; the end of each month, thoroughly mix the that it was apparent the defendant was uncontents of all these jars, and from that mix able to keep its part of the agreement, and, ture take three quart jars for analysis, and having failed to do so, they must refuse to will send to each department the result of his ship it any more coal. This witness further analysis of any one of these three jars, and testified that he told Mr. Quick, the water the departinent will then adjust the con engineer, that they had trouble about the tractor's bill, adding or deducting a given payment, and needed money, and that he said percentage of gain or loss upon given per they would do the best they could, but could centages of ash shown in the coal." Rejec not say he asked Mr. Quick whether they tions: “If the analysis shows that the sbip bad to wait for payment until an analysis ments of coal made by any contractor during was m also that his brother, Francis J. the month do not come within the specifica Schaub, was with him when he talked with tions,
then when the next ship Mr. Quick, and that his brother did most ment made by the contractor of the same of the talking at that time. Francis J. class of coal is received an analysis will be Schaub, testifying for the plaintiffs, said he made of a sample of this coal at once, and was a member of the bar, and attorney for if that analysis shows that the coal does not the plaintiffs, and confirmed Lewis W. come within the specifications, that ship Schaub in detail. He said the plaintiffs unment will be rejected, and must be removed derstood that defendant had the month of at once, at the contractor's expense.” Water August to make the analysis for July, and engineer to interpret contract: “The con they so told Mr. Owens, when they presented tractors agree that the water engineer is t the July bill, but asked him to hurry Prof. interpret the terms and conditions of this Lehman up, and he said he would; also that agreement, and the specifications accompany he went to see Prof. Lehman, who said he ing; and, in event of any dispute as to the meaning of any of the provisions and clauses the school board wanted the analyses he of same, the decision of the water engineer could not get them through by Christmas, is to be final."
even with six assistants; also that he had The testimony in the case may be sum seen Mr. Quick, and asked him if he could marized thus: Lewis W. Schaub, one of the not hurry it up, and he said he had nothing plaintiffs, testified that after the first month's to do with it; that after the letter of Sepdelivery he took a statement to Mr. Owens, tember 3d there was a meeting at the mayor's supervisor of school buildings, who had the office, when Mr. Quick and Mr. Owens were natter in charge, and who went over the present, and Mayor Hayes, and an effort was bill with him and corrected it; that he told made to arrange for delivering the residue Mr. Owens he would like to have the money, of the coal under the contract, and he agreed as the contract was taken at a low figure, to this for the plaintiffs if defendant would and they needed the money, and that Mr. take the coal by the manifest weight, and Owens told him they should have it as soon Mayor Hayes thought this was reasonable, as possible; that they continued delivering but Mr. Owens thought this would not be through August, and that during that month just to the other dealers, and no agreement he went to Mr. Owens more than once, and was reached. He also said that Mr. Owens told him they must have the money, as their phoned him after this interview to ship the shippers had made an agreement with them coal, and he went to see Gov. Whyte about according to their own specifications with the it, and Gov. Whyte said, "Get an order in defendant, and if they did not pay the ship Writing before delivering any more coal; if pers accordingly they would not ship any you ship that coal on Mr. Owens' say so, inore coal; that they went again to urge it will get you in trouble;" that Mr. Owens, payment, and were told the analysis had not at his request, on the 7th of September, been sent in, and that he replied, “You have phoned him the analysis, but said nothing
We would do the best he could, but that the way
about payment, and that if he had they 6,000 tons, though the contract required the would have been glad to accept it. Prof. delivery of two-thirds during July and Lehman, who also testified for the plaintiffs, August; but he admitted the correctness of confirmed the testimony of the two Schaubs. plaintiffs' statement that, as no coal was orHe says that he furnished no analysis to dered until July 16th, they were given until the school board until September 6th; that September 16th to furnish the two-thirds, as he was called some time in September to an offset to the two weeks in July. He also the mayor's office, by the mayor himself, to admitted that he gave no instructions to explain why there was delay in the coal Prof. Lehman as to the method of analysis analyses, and subsequently, on the same day, prior to the meeting in the mayor's office, received instructions how to furnish the and added that he had never since given analyses to the school board, and they were any such instructions, and that Prof. Lehthen furnished to Mr. Owens on September man was mistaken in his testimony on this 6th, but before that he was not informed point. He also proved the purchase of coal that analyses in detail were not required, from other parties for the school board after and understood that a separate analysis was plaintiffs ceased delivering, and that the inrequired from every school; that before re creased cost was the amount claimed by way ceiving the instructions in September he did of set-off. Alfred M. Quick, for defendant, tell the plaintiffs he could not furnish the then testified that he was the water engianalyses, with the force at his command, neer; that the plaintiffs did complain to him before Christmas, but after receiving Mr. of inconvenience to them by the delay in the Owens' instructions on the day of the meet analysis, but that they did not apply to him ing at the mayor's office he could easily fur for any interpretation of the contract. Upon 'nish them in the required time of one month; this testimony the prayers were offered, that he was not furnished with a copy of this which will be set out by the reporter in the contract until after September 6th, and only
statement of the case. received a lot of samples, without any di The contention of the plaintiffs is that the rections as to how they were to be treated, monthly payments provided for were meant aud that he wrote Mr. Schaub August 2, and understood by the parties to be of the 1901, no analysis would be made until all essence of the contract, and, the defendant the coal from one district was furnished, and baving failed to fulfill this stipulation, that then it would be for all the business of that the plaintiffs had a right to put an end to district. He said, on cross-examination, that the contract. The contention of the defendhe was never directed to analyze the July ant is that the analysis of the city chemist ccal without waiting for the August coal, is an absolute condition precedent to paythough the plaintiffs told him they were de nent, and that the failure of the chemist to pending upon the analysis for their payment, make the analysis within the time limited and were anxious to have the analysis made for payment enlarged the time for payment; before August 31st, as they feared trouble and also that the question whether the city with their shippers if they did not receive was in default by reason of nonpayment by payment from the school board. Robert L. September 1st for the July deliveries was a Windsor, a clerk for Lynah & Read, from question to be submitted to and determined whom plaintiffs purchased their coal, testified by the city engineer, and consequently that for plaintiffs that the specifications furnished the plaintiff's had no right to put an end by the defendant with the contract in this to the contract, and defendant was entitled case were shown to Lynah & Read, and to set off damages arising from its breach. were the basis of their contract with plain We are of opinion that the contention of tiffs as to payments; that is, all coal was the plaintiffs is correct, and that neither poto be settled for in the month succeeding sition of the defendant can be maintained. that in which it was shipped. This closed We cannot distinguish this case from that plaintiffs' case, and Benjamin B. Owens was of McGrath v. Gegner, 77 Md. 331, 26 Atl. be first witness for defendant. His testi 502, 39 Am. St. Rep. 415, which we regard mony did not materially contradict any of as conclusive of this controversy. There the the plaintiffs' testimony. He admitted that plaintiff agreed to buy of the defendant all about August 1st the plaintiffs brought in the the oyster shells made during the season, and bill for July deliveries, which was adjusted, to pay on the first day of each week for the and he told them that as soon as he got the shells delivered during the previous week. analysis the bill would be paid; that they After the delivery of a large quantity the decontinued delivering through August, and fendant notified the plaintiff that the confrequently urged payment for July, and his tract was at an end, on account of his failreply always was that as soon as the analysis ure to make the weekly payments, and rewas received payment would be made; that fused to deliver any more shells. Judge after August 29tb they stopped deliveries Robinson, speaking for the full bench, said: without telling why, and that they had not “We cannot suppose for a moment that the yet told why, though he admitted receipt defendant meant to give an indefinite credit from the school board of plaintiffs' letter of to the plaintiff, nor even a credit until all September 3d. He also said that the plain the shells were delivered or taken away. Op tiffs had only delivered about 2,000 out of the contrary, looking to the terms of the con
tract, it seems to us it was the intention of and we find nothing in the cases of Gill & the parties that the weekly payments by the McMahon v. Vogeler, 52 Md. 663, and Lynn plaintiff should constitute an essential part v. B. & O. R. R., 60 Md. 411, 45 Am. Rep. of the contract. In other words, it was of 741, in conflict with our conclusion, the disthe essence of the contract.” In Withers v. tinction between both those cases and the Reynolds, 2 Barn. & Adol. 882, where the de present being obvious when examined. Nor fendant agreed to supply the plaintiff with do we think that the question whether the straw to be delivered on plaintiff's premises, city was in default by reason of nonpayment at the rate of three loads in a fortnight, dur for the July deliveries by September 1st coning a specified time, and the plaintiff agreed stituted any “dispute," within the meaning to pay 30 shillings for each load so delivered, of the contract, as to the “meaning of any it was held that according to the true con of the provisions or clauses of the same.” struction of the contract each load was to be Questions as to the size, kind, or quantity of paid for on delivery, and that on the plain the coal delivered, as to the points of delivtiff's refusal to pay for the straw as deliv ery, the correctness of weights or analysis, or ered the defendant was not bound to deliver other kindred questions, would seem to be any more. And in Curtis v. Gibney, 59 Md. within the scope of this provision, but not 131, treating the contract as an agreement on the ultimate legal right of the parties to the the part of the defendant to consign 10,000 enforcement or the termination of the conbushels of barley to the plaintiffs, the ship- i tract. It follows from what we have said ments to be made at different times, and pay, that the plaintiffs' first prayer, which emment to be made on receipt of each shipment, braces and clearly states all the facts necesBartol, C. J., said: “It is equally clear that, ! sary to warrant a verdict in their favor upon upon his failure to remit to the appellant the the principle announced and adopted in Mcproceeds in his hands arising from the sale Grath v. Gegner, was correctly granted, and of the barley according to the terms of the that the defendant's first and fourth prayers, contract with the appellant, the latter was which required the liability of defendant to not bound to make further consignments to be submitted to the water engineer, were him."
properly rejected. Defendant's second prayIn the case before us a careful examination er was properly rejected because it declared of the contract we think will leave no ques analysis of the coal to be a condition precedtion as to the intention of the parties, and ent to payment, and also because it made their conduct will confirm the construction plaintiffs' right to recover depend upon the placed upon the contract. It is not reason finding that the analysis was delayed for the able to suppose that the plaintiffs would en purpose of delaying payment, whereas the ter into a contract, the fulfillment of which failure to make analysis within the preon their part would require the use of so scribed time was sufficient, without regard to large an amount of money, without some cor the reason of the failure. In like manner, responding obligation on the part of the de defendant's third prayer was properly refendant to reimburse them during the prog- jected because the contract in prescribing a ress of the fulfillment. In order to provide specific period for making analysis excludes for payments to be made by them, it was es any question of due diligence. The fifth sential that they should know when they prayer of defendant was defective in subcould demand payments to be made to them, mitting to the court sitting as a jury the and accordingly the proof shows that they question whether the defendant's failure to bound themselves to pay their shippers, Ly- | perform its contract, if found as a fact, was nah & Read, in the same manner that the sufficient in law to justify the plaintiffs in city was bound to them. It is thus made rescinding the contract on their part. Findclear that they attached importance and value ing no error in the rulings of the learned to this stipulation for time of payment, as judge, the judgment will be affirmed. observed in Bowes v. Shand, 2 App. Cas. 455. Judgment affirmed, with costs above and
Again, we think it is plain that the parties below. contemplated an early monthly analysis, in order to prevent the hardship upon the plain JONES, J. I respectfully dissent from the tiffs of full delivery for a succeeding month, views of the majority of the court upon a with the possibility of its rejection and con vital point in this case, and will briefly state sequent removal at their expense; for it is my reasons therefor. The facts and the eviexpressly provided that, if the analysis for dence in the case are sufficiently stated in any month shows that the coal does not con the majority opinion to make it unnecessary form to the specifications, when the next to do more here than to refer to such part shipment is received an analysis will be made of the evidence as will make intelligible the at once, and if that analysis shows the coal grounds of my dissent. The pleadings in does not conform to the specifications that the case put in issue the right of the appelshipment will be rejected, and must be re lant to recoup from the claim of the appelmoved at the contractor's expense. For lees, in suit, damages sustained by the apthese and other reasons of like character we pellant by reason of the refusal of the apdo not think the analysis can be regarded as pellees to carry out the contract which the an absolute condition precedent to payment, 1 appellees offered in evidence as the basis