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not deem it necessary to do more than state our conclusions, based on our own examination of the record.

In the first place, then, let us state the grounds upon which the plaintiff bases his claim against the defendant company for nearly $350,000. In his report the auditor reduces them to five general heads, and these five items are the same as those relied on by the plaintiff in Account X, which was stated at his request. They are as follows:

inter sese. In the case of Waring v. Natl. Marine Bank of Baltimore, 74 Md. 278, 22 Atl. 140, attention is called to the recognized distinction between a partnership between the parties themselves and a partnership as to third parties, which arises by operation of law. "But the question," said the court, "of partnership inter sese, is one of intention, and it may be laid down as a general rule that no such partnership can exist against the consent and intention of the parties. Bull v. Schuberth, 2 Md. 55." See, also, Lon- (1) Total earnings of the Brush Company don Ass'n v. Drennen, 116 U. S. 461, 6 Sup. from all sources from October 13, 1893, to Ct. 442, 29 L. Ed. 688; Paul v. Cullum, 132 December 1, 1894, together with interest, U. S. 539, 10 Sup. Ct. 151, 33 L. Ed. 430. It amounting to $339,851.01. On October 13, is apparent from the evidence disclosed by 1893, it appears from the testimony that the the record not only that no partnership was plant of the Brush Company was destroyed intended, but that everybody connected with by fire, and the plaintiff alleges that immethe United States Company contemplated diately thereafter the United States Comthe formation of a corporation. The charter, pany was ordered by the Brush Company or what was supposed to be a valid charter, not to take any more business until further is filed as one of the exhibits with the bill. orders by the latter company, and that there It is but equitable, therefore, that the rights upon the Brush Company took possession of the stockholders or members of the unin- of the United States Company and its works, corporated association, as between them- and used them for the benefit and advantage selves, should be governed by the terms and of the Brush Company from October, 1893, to conditions and limitations set forth in the November, 1894, to the great detriment and paper which they believed and understood loss of the United States Company. After to be a charter; that is to say, upon the arti- an examination of the testimony produced cles, conditions, and provisions therein set to sustain this item of the claim, we entirely forth, "and subject in all particulars to the agree with the conclusion reached by the limitations relating to corporations" formed auditor and approved by the court, refusing under the general laws of this state. If we ❘ to allow this part of plaintiff's claim below. are correct in this conclusion, it follows that | It appears from the testimony of the plainthe rights of the United States Company and ¦ tiff himself that when the question was conthe Brush Company must be determined precisely as if both corporations, instead of only the Brush Company, had a legal corporate existence. We then have before us the same question which was presented in the case of Booth v. Robinson, 55 Md. 419, where it was held that the directors of the controlling company and the controlling company itself can be only held answerable for fraud, or such gross negligence in the management as amounted to fraud, and that the burden of proof in establishing such mismanagement was upon the plaintiffs.

The only remaining question, then, is whether the proof in this case, in view of what we have said in disposing of a similar appeal in 77 Md. 35, 25 Atl. 982, is sufficient to sustain the allegations of the bill now before us. We have already referred to the fact that the allegations of fact of the present bill are to the same general effect as those of the bill in the former appeal, and the facts relied on in some instances are the same as those adduced to support the allegations of the former bill, together with additional facts not before brought to the attention of the court. This branch of the case presents questions of fact, and they have been so fully examined and considered by the learned auditor of the circuit court in his report, which was adopted by the court below after a careful examination of the testimony on which it was based, that we do

sidered by the directors of the United States Company-a majority of whom, it is claimed, really were representing the interests of the Brush Company, and were put in the directorate for that purpose by the latter company-the sum of $1,500 per month was fixed upon as a reasonable rate per month to be paid by the Brush Company for the use of the power of the United States Company in running the Brush Company's machines. The plaintiff objected to this allowance, and asked if they (the board) could not make it $1,550 per month. The plaintiff testified that Mr. Clark thought the allowance of $1,500 per month was entirely too low, "and [quoting] as he thought so, I thought so, too; and I made the proposition to try to get $50 more, and failed." Under these circumstances, it is difficult to believe that the plaintiff and those representing the minority and adverse interest in the United States Company thought at the time that the amount actually allowed and paid by the Brush Company was unreasonably small, as there was only a demand for the small additional sum of $50. The clerk and bookkeeper of the United States Company testified that, the day after the burning of the Brush Company's plant, "there were a good many calls for lights, which we [the United States Company] did not fill, for two reasons: One was we had an order from the Brush Company not to do anything in the matter of taking lights un

til we heard 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." But in addition to this it abundantly appears that the Brush Company immediately after the fire installed a 60-light machine at McElderry's wharf, and one of the defendants' witnesses testified that he was employed at the Brush works prior to and after the fire, and that inside of three weeks after the plant was destroyed the Brush Company had at its own works two engines going, capable of driving 500 horse power, and that before the end of the year two other engines were going-one of about 240 and the other of 124 horse power. The claim, therefore, that the United States Company furnished the whole or any considerable part of the service to the Brush Company from October, 1893, to November, 1894, is far from being sustained by the testimony. Without further comment, therefore, upon this item, we are satisfied that the amount agreed upon and paid, viz., $1,500 per month, for the use of the power furnished by United States Company to the Brush Company, was fair and reasonable. Nor do we see that there was anything unfair or fraudulent in the action of the majority of directors of the United States Company in using the money of the United States Company in redeeming the ground rent on the United States Company's works, instead of purchasing and installing machinery in the United States Company's works so that it could, as alleged, "reap the full benefit of the Brush Company's misfortune," for, as it turned out afterwards, the United States Company was unable, even under the energetic management of the receivers, to compete with its rivals for business. Two other companies besides the Brush Company were in the field, and it necessarily followed that in the face of such competition the weakest company would go under.

(2) The second item of the plaintiff's claim against the defendant the Brush Company relates to the receipts from the North Avenue and Lake Roland Elevated Railway Companies from January 1, 1892, to June 30, 1893. The claim on the part of the plaintiff is that the United States Company is entitled to the whole of the money derived by the Brush Company, with interest thereon, amounting to $13,453.62, because the Brush Company fraudulently deprived the United States Company of the contract to serve the power to the railroad companies. This is substantially the same claim set up in the former appeal (77 Md. 35, 25 Atl. 982), where it was held 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 that the Brush Company was not guilty of any fraudulent attempt to injure the United States Company. The auditor also disallowed the plaintiff's claim based upon the theory that 66 per cent.

of the cost of operating the generators of the North Avenue Railway Company was an unjust discrimination against the United States Company. Upon the testimony in the record quoted by the auditor, and for the reasons given by him in his report, we entirely agree with him that this claim was properly disallowed. Speaking of this same transaction, we said in 77 Md., 25 Atl.: "The proof leaves it somewhat in doubt as to whether that company [the 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," says the auditor, "continued to operate under these terms, and to receive the 66 per cent." He, therefore, as we have seen, refused to allow this second item of the plaintiff's claim, and we think he was right.

(3) The third item is for gross profits on amount admitted by the Brush Company to have been realized by it from the business of the Northern Central Railway Company, alleged to have been unfairly taken from the United States Company by the Brush Company. This item amounts to $2,019.37. We have examined the testimony adduced to support this part of the plaintiff's claim, and, without discussing it in detail, we think it was properly disallowed.

(4) The fourth item of the plaintiff's claim is for gross profits on business admitted by the Brush Company to have been done by it on Pennsylvania avenue and Patterson avenue in 1896, amounting to $182.66. This item appears to be based upon the theory that, inasmuch as the United States Company was the first to extend its lines on those streets, the Brush Company had no right to use them to serve its own customers. Surely the fact that the Brush Company owned a controlling interest in the United States Company did not destroy the right it would otherwise have had to honestly and fairly compete with the United States Company. We know of no principle of law regulating corporations situated as these two were which would sustain this contention of the plaintiff.

(5) The fifth and last item of the plaintiff's claim is thus stated by him: Gross profits on earnings admitted by the Brush Com pany to have been made by it from sundry customers of the United States Company, diverted from it by the Brush Company, viz., 40 per cent. on $6,158.94, amounting to $3,245.81, including interest. A claim similar to this was discussed in the former appeal, in reference to the order that all applications for lights should be referred to the secretary of the Brush Company. It was held in 77 Md., 25 Atl., that the weight of testimony was to the effect that, in deciding which company should take a contract, a reasonable

fairness was observed. "We do not undertake," continued the court, "to pass upon the correctness of * the decision in each particular case so referred. It is sufficient to say that we find nothing that would justify a court in holding there was anything fraudulent on the part of the Brush Company or its alleged representative." This was the conclusion reached on the testimony before us in the former appeal, and we have failed to find any evidence taken in these proceedings which would justify a different conclusion now.

It follows from what we have said that we entirely agree with the learned court below, and the order appealed from will be affirmed.

The report of the auditor accompanying the account which was ratified discusses the facts so fully and clearly that we will request the reporter to include it in the report of this case.

Order affirmed, with costs.

(96 Md. 390)

EAST BROOKLYN BOX CO. OF ANNE
ARUNDEL COUNTY v. NUDLING.
(Court of Appeals of Maryland. Jan. 22, 1903.)
SERVANT-ACTION FOR INJURIES-DECLARA-
TION-SUFFICIENCY.

1. A declaration by a servant for injuries, averring that they were due to the defective manner in which certain machinery had been set up, of which he then had no knowledge, and which he, "from lack of knowledge of machinery," could not, by due care, have ascertained, is not demurrable, as showing contributory negligence in undertaking the service when he knew nothing of machinery; it not appearing from the declaration that plaintiff was not an infaut, or that he had not just been employed in the particular service, without any knowledge, or means of knowledge, of the risks incident thereto.

Appeal from circuit court, Anne Arundel county.

Action for personal injuries by Aloysius Nudling against the East Brooklyn Box Company of Anne Arundel County. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

Robert Moss and Daniel R. Magruder, for appellant. James W. Owens and Wm. J. Kennedy, for appellee.

PEARCE, J. There is but a single, narrow point for determination in this appeal, arising upon a demurrer to the declaration; and it is not without interest, though it may be briefly disposed of. While affirming the ruling appealed from, it is due to the appellant's counsel to say that their views of the law were presented with much force.

The suit was brought by the appellee to recover damages for injuries alleged to be due to negligence of the appellant in pre

maturely starting a steam split saw, while the appellee, one of its employés, was engaged in filing the saw. The trial resulted in a verdict for plaintiff, under instructions to which no exceptions were taken by either party. The declaration alleges that plaintiff's injuries were received "through the premature running and operation of the saw; that the premature running and operation of said saw was due to the defective and unskillful manner in which the same, and the connecting pulleys, belt, and shafting, had been erected and suffered to remain, of which the plaintiff then had no knowledge or information, and which the plaintiff, from lack of knowledge of machinery, could not, by the exercise of due care, have ascertained; and that the accident was not due to any fault or want of care on the part of the plaintiff, who used due care and caution." The demurrer is based upon the insertion in the declaration of the words we have italicized, and the contention is that the effect of these words is to charge the plaintiff with contributory negligence in undertaking a service which resulted in injury to him by reason of his self-confessed "lack of knowledge of the machinery" which he undertook to put in order. It is true that one entering an employment impliedly represents "that he is competent to perform the duties of the position which he seeks, and competent to apprehend and avoid all dangers that may be discovered by ordinary care and prudence," provided he is "apparently of sufficient age, physical ability, and mental caliber to perform the service." Bailey's Master's Liability for Injuries to Servants, 133. And where there is an opportunity for proof, it may be presumed, in the absence of proof to the contrary, that the plaintiff comes within these requirements. But there is nothing in the declaration to show the plaintiff's age, intelligence, or physical capacity, when he was employed, or for what service, or what opportunity he had to acquire any knowledge of the condition of the machinery which operated the saw. He may have been an intelligent adult, and have been for a long period in the service of the defendant, and may have been familiar with all the alleged defects which rendered it dangerous to file the saw while at rest, though the demurrer admits that he had not such familiarity; but, for aught the declaration discloses, he may have been an infant of immature years and understanding, or he may have been employed for the first time for that particular service, without any knowledge, or means of knowledge, of the risks incident thereto. If the testimony in the case warranted the claim that he was guilty of contributory negligence, or that his injuries were due to the negligence of a fellow servant, barring his recovery, these questions could and should have been raised by prayers. Where the declaration clearly shows that the plaintiff was guilty of contributory

negligence, advantage may be taken by demurrer, and an allegation in the declaration that he used due care will not save the declaration from being bad. 5 Enc. Plead. & Prac. 10. But the true rule for this casethe rule indicated by sound reason, we think -is well laid down in Rumpel v. Oregon Short Line R. R. (Idaho) 35 Pac. 700, 22 L. R. A. 725, which is closely analogous to the present case in its legal aspect. There the plaintiff, in his complaint, alleged that he was compelled to, and did, pass under one of the cars of a train which was blockading a street crossing, and that the train suddenly started, and injured him. The court said that at first sight it would appear that the plaintiff had pleaded himself out of court, as it would be difficult to conceive a condition of things existing where it would not be negligent to pass under one of the cars of a freight train; but, upon full consideration, the court concluded by saying, "We are not prepared to say, however, that under this complaint a state of facts could not be proven which would entitle the plaintiff to recover, and therefore we sustain the court in overruling the demurrer." We think this decision was grounded on common sense and in sound legal discrimination. In the case before us, when the proof was gone into, a state of facts was developed, as appears from the prayers incorporated in the record, with which we have nothing to do, but which resulted in a verdict for plaintiff, without any exceptions being taken by either party, either as to the admission of testimony, or as to any instructions offered; and it would be difficult to imagine stronger confirmation of the reasoning of the Nevada court in the case cited.

Judgment affirmed, with costs to the appellee above and below.

(96 Md. 489)

McGAW et al. v. GORTNER et al. (Court of Appeals of Maryland. Jan. 23, 1903.) VENDOR AND PURCHASER-CONTRACT TO CONVEY-EXERCISE OF OPTION-SPECIFIC PERFORMANCE-JURISDICTION.

1. Code Supp. art. 16, § 188, provides that where any person dies, leaving real estate, and not leaving personal estate sufficient to pay his debts, the court, at the suit of his creditors, may decree that the real estate shall be sold to pay his debts. A husband and wife contracted to give plaintiffs an option for six months on a certain tract of land lying outside the state, and within the six months, but after the death of the husband, plaintiff elected to buy, but the wife and heirs of the husband refused to convey. Held that, as plaintiffs had not elected to buy during the husband's life, their claim for damages for refusal to convey was not a debt due from the husband, entitling plaintiff to sue under the statute quoted.

2. Where a bill was filed against certain heirs to subject local lands of a decedent to the payment of a claim against decedent for failure to fulfill a contract to convey land lying outside the state, and service was had by publication. as authorized by Code, art. 16, § 105, the bill rould not be converted into one for specific per

formance, since the court would have no jurisdiction of the subject-matter of such a bill.

3. Where jurisdiction of nonresident defendants in a bill to subject the lands of their ancestor to plaintiff's debt is obtained by publication, they are not in court for any other or different purpose, and such jurisdiction could not be retained to make the bill one for specific performance.

Appeal from circuit court, Prince George's county, in equity; Geo. C. Merrick, Judge.

Bill by George K. McGaw and others against Mary A. Gortner and others. From a decree for defendants, complainants appeal. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PAGE, PEARCE, and SCHMUCKER, JJ.

Thomas M. Lanahan, Charles H. Stanley, and Frank Gosnell, for appellants. Wilson & Clagett and J. F. Strieby, for appellees.

PAGE, J. The appellants in their bill of complaint charge: That one William J. Gortner, being seised of certain lands in the state of West Virginia, contracted and agreed with them as follows: "Baltimore Dec. 21, 1894. In consideration of One Dollar and other valuable consideration the receipt of which we hereby acknowledge, we, William J. Gortner, husband and Mary A. Gortner wife agree to sell and deed to Geo. K. McGaw, Chas. T. Davis and Jas. B. Ramsay, one-half interest in all lands in Nicholas Co. West Virginia now standing in the name of, or belonging to William J. Gortner and Mary A. Gortner aforesaid for the sum of $6,25000/100, and the said Geo. K. McGaw, Chas. T. Davis and Jas. B. Ramsay agrees to buy the same and pay the sum aforesaid for the one-interest within six months from date hereof, provided after a personal inspection of said land within the six months, they the said Geo. K. McGaw, Chas. T. Davis and J. B. Ramsay is satisfied with the value thereof, or in other words we William J. Gortner and Mary A. Gortner his wife agree to give Geo. K. McGaw, Chas. T. Davis and J. B. Ramsay an option for six months on one half interest in our holdings of lands in Nicholas Co. West Virginia for the sum of $625000/100. It being further agreed however that should the said Geo. K. McGaw, Chas. T. Davis and J. B. Ramsay elect to purchase under this option it is hereby understood that the land aforesaid are to hold and develop if possible for the equal and just account of all in such manner and at such times as may be agreed by us all and to our mutual advantage. Selins Grove Dec. 24th 1894. W. J. Gortner. M. A. Gortner." That a part of the "further consideration" for said agreement was that the complainants should pay the taxes due at the time on the lands-the same to be refunded if the complainants failed to purchase and that they did, in consequence, pay the same, amounting to $190.96. They

further allege that within the six months they did examine the lands, and elected to purchase, and so notified the widow and heirs at law of W. J. Gortner, who had died in the meantime, but they refused, and still refuse, to receive the purchase money tendered them, and convey the land to them. W. J. Gortner died in January, 1895, leaving no personal estate in the state of Maryland, but seised and possessed of a tract of land situate in Prince George's county. The claim of the complainants, as set out in the bill, is that they have a right to subject the real estate in Maryland to the payment of whatever may be due them for the nonperformance of their contract, which they charge to be $12,000, and pray they may have such relief, and al! "such other as the nature of their case requires." They also pray for an order of publication against the appellees as nonresidents, directing them to appear. On the expiration of the time mentioned in the order, the appellees appeared and answered, denying some of the averments of the bill, and that the complainants are entitled to the relief for which they pray. The lower court on final hearing dismissed the bill, and from its decree this appeal was taken.

The main question in the appeal is, had the lower court jurisdiction over the case made by the bill? The contract between the parties is not one of sale and purchase, but simply of an option for a limited period. The parties themselves so understood the agreement, for they so declare in the instrument itself "in other words we [Gortner and wife] agree to give [McGaw et al.] an option for six months." Without these words, the contract can only be construed as an option. It bound Gortner to accept the price and convey the land in the event that McGaw, within the six months, should elect. Until such election was made, there was no such obligation upon the Gortners, and, if the six months expired without such election having been made, there was an end of the matter, and the contract would not be binding on any of the parties. Dur ing the six months within which the election could be made, the Gortners were bound to keep the property unsold; they having agreed, for a valuable consideration, to maintain their control over it, so that they could convey if the appellants elected to purchase, and paid or tendered the purchase money. These principles are fully supported by the authorities, and by the decisions of our own court in Coleman v. Applegarth, 68 Md. 21, 11 Atl. 284, 6 Am. St. Rep. 417; Thistle Mills v. Bone, 92 Md. 47, 48 Atl. 37; Maughlin v. Perry, 35 Md. 352. The cases to which we have been referred by the appellees are not in point. They are not those in which a valuable consideration was paid by the other party for the offer.

It seems to be clear, therefore, that Gortner, having died before any election was

made, was not at the time of his death, nor ever was, under any legal obligation to receive the purchase money and convey the property, and therefore there cannot be any claim against him individually for a breach of the contract. And if this be correct, this case cannot be brought within the operation of the 188th section of article 16, Code Supp. The words of that section are as follows: "Where any person dies, or shall have died leaving any real estate in possession, remainder or reversion and not leaving personal estate sufficient to pay his debts, and costs of administration, the court on any suit instituted by any of his creditors, may decree that all the real estate of such person, or so much thereof as may be necessary, shall be sold to pay his debts." Here the court is empowered, whenever there is no personal estate sufficient to pay the debts of a decedent, to decree a sale of the real estate at the suit of "any of his creditors." The suit must therefore be instituted by a "creditor"; and its object and purpose, the payment of the "debts" of the decedent. A fundamental condition of fact upon which the court may exercise jurisdiction under this section is that there is a debt due by the decedent in his lifetime; that is, one for which the decedent could have been sued at the time of his death. There is nothing in conflict with this to be found in the case of Van Bibber v. Reese, 71 Md. 611, 18 Atl. 893, 6 L. R. A. 332. There the court said this act "makes the land descended or devised liable to be sold for the payment of any demand due by the decedent," and much stress was laid upon the words "demand due" at the argument, as supporting the contention of the appellant that the court had authority, under the facts of this case, to decree the sale of the land of the appellees located in this state. But by the most strained construction of the words they cannot be heldespecially in the connection in which the learned judge employed them-to mean more than what was in fact a subsisting claim against the decedent at the time of his death, and could not include any right or demand that should arise after his death against his estate, or any portion of it. Now, as we have shown, Gortner was under no obligation to sell and convey the property, for the reason that up to that time the appellants had not exercised their right of election. He was bound to keep the land in such a condition, as to the title, that, if the election were made in time, the appellants could get the benefit of the option. But he himself was never under any obligation to sell and convey; nor at any time during his life were the appellants in any wise bound to accept the deed, had it been offered.

But the counsel for the appellants suggested that the bill be "converted into a bill for specific performance," and asked this court to remand the cause, under section 28 of article 5 of the Code. It cannot be contended

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