The sixth

little upon the issues in the cause, under the circumstances of this case. There is therefore no cause for reversal, at least, in the action of the court in the matter of these exceptions. The fifth exception was to the evidence given by a Mrs. Lafferty, in which she testified to conversations had with Mrs. Staylor in reference to the appellee, one of which conversations occurred about three weeks before Mrs. Staylor died. She testified to statements made by Mrs. Staylor to the effect that she (Mrs. Staylor) had not given the appellee anything for her services. The appellee had offered evidence tending to show that she had rendered services for Mrs. Staylor, and that these services were to be paid for. The admissions testified to by this last-named witness went to the appellee's whole case-all of them to the merits, and some of them to the appellee's replication to the plea of the statute. It was a part of the appellee's case to show that she had received no payment for her services, and that this had been admitted by Mrs. Staylor within time before suit brought to sustain her replication of new promise. The evidence in question was therefore directly in support of the issues on trial. exception is to an offer by the appellee of evidence to show what was the reasonable value of such services as it had been testified, in the course of the trial, that the appellee rendered during her stay with Mrs. Staylor. The objection to this offer of evidence is based upon the same reason and theory as are the third and fifth prayers of the appellant, which were rejected by the court. The ground of the objection is that the appellee's bill of particulars shows that the services, for the value of which the appellee sues, were rendered under a special agreement, according to which the appellee must recover, or not recover at all, and that consequently no evidence is admissible to show what is the reasonable value of the services in question, because this would be to allow a recovery by the appellee upon a quantum meruit. Now, it is to be observed that, assuming that the bill of particulars does set out a special contract, this contract has been fully executed, as to the rendering of the services, and nothing remains to be done under it, except the payment of the compensation due for the services so rendered. The contract was not specific in its terms, fixing a period within which it was to be performed, and defining just what the services were that were to be rendered under it. The time during which the services were to be rendered was left indefinite, and the employment was a general one, as a domestic. Under such a contract there can be no way of ascertaining the extent, character, and value of services actually rendered, except by proof such as was proposed to be introduced here, and made the subject of the exception now under consideration. It was incumbent upon the

appellee to show the character of services actually rendered, and it was just as necessary that the value of them should be shown. There could have been no recovery for larger compensation than the appellee had claimed in the bill of particulars, but within that claim she would have been entitled to recover for services actually rendered by her and accepted by Mrs. Staylor, according to their extent and value, provided they were not "other and different services" from those claimed for in the bill of particulars, and had been rendered with the intention on her part to charge for them, and the expectation on Mrs. Staylor's part to pay for them. All question as to the admissibility of the evidence under consideration, or as to the action of the trial court upon the prayers that have been referred to in this connection, is concluded by the case of Fairfax-Forrest Mining & Manufg. Co. v. Chambers, 75 Md. 604, 23 Atl. 1024. In that case the court was dealing with a bill of particulars of like character and effect as the particulars in the case at bar, and, in reference to the identical question which is here raised in the sixth exception to evidence as to the admissibility of evidence to prove the value of services actually rendered, this court said, through Judge Robinson, "Evidence as to the nature and character of the services, and what would be a fair and reasonable compensation therefor, was admissible in evidence." Judge Robinson also said that, for the services rendered, the plaintiff in that case "was, beyond question, entitled to recover, irrespective altogether of the contract itself." Again, in dealing with a prayer in that case which had been rejected, and which asserted the proposition that, to entitle the plaintiff to recover, he had to prove the contract set out in the bill of particulars, the court further said, after criticising the prayer in other particulars, "we are not to be understood as meaning that the right of the plaintiff to recover in an action of assumpsit depended upon his being able to prove the agreement under which his services were rendered. On the contrary, if services were actually rendered by him and accepted by the defendant, he was entitled to recover compensation for such services, independent altogether of the special agreement." Then, after speaking of the office and effect of the bill of particulars, and saying that the plaintiff could not "recover for other and different services, nor could he offer evidence of any other claim or demand," the court further said: "But the bill of particulars did not prevent the plaintiff from recovering under the common counts if the special contract was executed, or, in other words, if the services under it had been fully rendered, and nothing remained to be done but the payment of the money by the defendant." This would seem to make clear the correctness of the ruling of the court below upon the sixth ex

ception to evidence, and upon the third and fifth prayers of the appellant. The case of School Commrs. v. Adams, 43 Md. 349, much relied upon by the appellant here, is not in point. In that case this court said there was error in the ruling of the court below, because the plaintiff there had been allowed to recover for "other and different services" from those that fell within the description given in the bill of particulars. From what has been said, no special comment need be made upon the second, sixth, and seventh prayers of the appellant. They were properly rejected. It remains only to make reference to the one instruction granted by the court below at the instance of the appellee, of which it need only be said that it was based upon the evidence in the cause, and its special form received the approval of this court in the case of Gill v. Staylor, 93 Md. 453, 49 Atl. 650.

It follows from the foregoing views that the judgment of the court below must be affirmed. Judgment affirmed, with costs to the appellee.

(96 Md. 446)

CANNON v. BRUSH ELECTRIC CO. OF BALTIMORE et al.

(Court of Appeals of Maryland. Jan. 22, 1903.) CORPORATIONS-CONSOLIDATION-ILLEGAL INCORPORATION PROCEEDINGS-RELATION OF STOCKHOLDERS INTER SESE-ACTS OF DI

RECTORS-FRAUD-EVIDENCE.

1. Where a consolidated corporation was formed from two other supposed corporations, which in fact never had any legal existence, the rights of stockholders of such consolidated corporation inter sese should be governed by the supposed charters of the corporations, and laws of the state relating thereto, and not by the rules governing partners; nor should the managing directors be treated as agents of the stockholders.

2. The B. Electric Company purchased a majority of the stock of the U. Electric Company to prevent competition, and some time thereafter, on the B. Company's plant being destroyed by fire, its directors, who also managed the U. Company, directed that the latter should not take any more business until further orders from such directors. The B. Company thereafter used the machinery of the U. Company to furnish power to its customers, and its directors fixed a price of $1,500 per month for the use of such power. Plaintiff, a dissenting stockholder of the U. Company, objected to this allowance, but only requested that it be increased $50 per month, which was denied. Held, that such facts did not show that such price was unfair or unreasonable.

3. Where a competing electric light company purchased a majority of the stock of the U. Company, and, on the burning of the former's plant, notified the U. Company not to take any more lights until notified to do so, but the U. Company's bookkeeper testified that the company had no capacity for more lights, said order did not show that the competing company was managing the U. Company for the benefit of the former's stockholders at the expense of the latter.

4. Where the B. Electric Company owned a controlling interest in the U. Electric Company, with which it was in competition, and the plant of the B. Company was destroyed by fire, the fact that the directors of the U. Company, who

were also directors of the B. Company, used the U. Company's fund in redeeming the ground rent on the U. Company's works, instead of increasing the U. Company's capacity by purchasing more machinery, "so that it could reap the benefit of the B. Company's misfortune," did not show that the B. Company was fraudulently using the UJ. Company for its benefit, at the expense of the U. Company's stockholders.

5. Where a valuable contract for furnishing electric power, lost by the U. Electric Company without any fault or act of the B. Company, which owned a controlling interest in the U. Company, was thereafter obtained by the B. Company, the fact that the B. Company entered into an agreement with the U. Company to supply the power required by the contract at 66 per cent. of the price received by the B. Company, in the absence of any showing that the U. Company incurred any loss in supplying such power, did not indicate a fraudulent design of the B. Company to injure the U. Company.

6. Where the B. Electric Company owned a controlling interest in the U. Electric Company, with which it was in competition, the fact that the latter had extended its lines on certain streets of the city in which it was located did not prevent the B. Company, in the exercise of fair competition, from rightfully constructing its lines on the same street to serve its customers thereon.

Appeal from circuit court No. 2 of Baltimore city; J. Upshur Dennis, Judge.

Suit by Thomas J. Cannon against the Brush Electric Company of Baltimore and others for the appointment of a receiver of the United States Electric Power & Light Company of Baltimore City, and to recover damages from the Brush Electric Company of Baltimore for alleged injuries and unfair competition. From a judgment on an auditor's report in favor of defendant Brush Electric Company, plaintiff appeals. Affirmed.

The following is the report of the auditor, referred to in the opinion:

"The bill of complainant alleges, among other things, that the complainant and defendants are copartners, as the attempted incorporation of the consolidated company, the United States Electric Power & Light Company, is void. The court, by decree of November 26, 1897, has decided that the said United States Electric Power & 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, copartners, or what is their legal status as regards each other. The facts are: On October 8, 1881, the United States Electric Light Company attempted to incorporate under the general law, and on September 5, 1885, the United States Electric Lighting Company made a similar attempt; and on October 21st, 1885, the present company, the United States Electric Power & Light Company, was attempted to be formed by a consolidation of the two former companies. 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 & Light Company erected works and proceeded to furnish light and electric power in Baltimore City. On March 7, 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 31, 1890. Laws 1890, c. 233. In 1886 the Brush Company purchased from certain stockholders 2,784 shares of the United States Electric Power & Light Company, and thus obtained a controlling interest in the United States Company.

"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 & Light Company? 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 copartners. 1 Lindley on Part. p. 25. But as between themselves the conditions seem to lack many of the elements which go to create the relation of copartners. Thompson on Corporations, vol. 1, sec. 14, states as follows the difference between a corporation and a partnership: (1) Its members may, in general, without restraint, by transferring their shares, introduce other persons in their stead,' etc. (2) 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,' etc. (3) The partners are liable in their private estates, for debts,' etc. 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, 16 L. Ed. 762. And again, between the parties themselves the test has always been their actual intent. Culley v. Edwards, 44 Ark. 424, 51 Am. Rep. 614; Waring et al. v. Nat. Marine Bank, 74 Md. 278, 22 Atl. 140. That there was no intention or understanding of 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 copartnership 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. 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 copartners 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. 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.

"The bill of complaint, after alleging, as above stated, that the parties are to be con- · sidered, 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,' etc., 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 States Company and take its business for said Brush Company; 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

vised 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 misuser 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. 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. 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. Sen'ter, 26 Mich. 73; U. S. Rolling Stock Co. v. Atlantic & Great Western R. Co., 34 Ohio St. 450, 32 Am. Rep. 380. 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 reasonable 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, 77 Am. Dec. 311; Cumbld. Coal & Iron Co. v. Parish, 42 Md. 598; Jackson v. Ludeling, 21 Wall. 616, 22 L. Ed. 492.' 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 conclusions 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.

"In the account which the complainant has submitted to the auditor, as embodying his claim, the items are substantially as follows: 1. For business conducted from

Oct. 1, 1893, to Dec. 1, 1894.. $254,262 66 Int. Dec. 1, 1894, to Nov. 1, 1901

.......

104,247 65

"Much of the testimony supposed to support the claim for the items 2 and 5 is found in the case of Davis et al. v. United States Electric Power & Light Company et al., and where these very questions here raised have been thoroughly threshed over by the court in its opinion. 77 Md. 35, 25 Atl. 982. 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,