ing state that the plaintiff was duly elected, "provided he answered the corresponding secretary's letter." On December 30, 1900, the secretary sent a notice to the plaintiff, by mail, of his election, directing it to Ashton, R. I., from which place it was forwarded to the plaintiff at Providence, where he had returned, and was received by him on January 1, 1901. On January 3, 1901, the plaintiff duly mailed his acceptance of the offer of contract, made by the society, to the corresponding secretary thereof. This was done before he received the notice of the withdrawal of the offer of contract by the society, hereinafter referred to. The plaintiff's substitute, Dr. Gray, in October, 1900, received the list of the society's members, and the plaintiff himself was notified of some members in arrears and of some members in good standing during the period in question. He testifies that he performed whatever services were required of him during the period for which he was elected, and that these services included quite an amount of regular professional work. At a special meeting of said society, held on January 2, 1901, the object of which meeting was to elect a doctor for the society, Dr. Boucher was elected to that position, and the corresponding secretary was directed to notify the plaintiff that his services were no longer required. At a subsequent meeting of the society, held on January 11, 1901, it was "moved and seconded that all business transacted at our special meeting stand legal; moved and seconded that Dr. Boucher shall be doctor for the balance of the present term." In pursuance of the action taken by the society at said special meeting, the corresponding secretary notified the plaintiff, by mail, that his services were no longer required. The letter containing this notice was posted at Providence on January 3, 1901, at 4 p. m., and was received by the plaintiff on the evening of the following day.

The first point relied on by defendants' counsel is that the plaintiff is not entitled to compensation for services to individual members of the society; that he must stand or fall upon his right to claim that the contract was entered into with him on the 28th of December, 1900. Assuming that by this statement counsel means that, in order to entitle the plaintiff to recover, he must prove that he was legally elected to the office or position of physician to said society, and that he accepted said office or position before receiving notice of the withdrawal of the offer made to him in manner aforesaid, we concur in the position taken. Moreover, we do not understand that the plaintiff is suing for compensation for services rendered to individual members, but that he is suing simply on the contract which he claims to have made with the society. His bill shows this. It is as follows: "Providence, R. I., July 1, 1901. St. Wilhelmina Benevolent Aid Society, of Providence, R. I., and Branch

No. 625 of the C. L. B. U. of America. To Bernard F. McDermott, M. D., Dr. To professional services from January 1, 1901, to July 30, 1901, both inclusive, for 150 members of the society, at ten (10) cents a month each, covering a period of six months, in accordance with contract with the society, $90.00." This testimony as to services to individual members was offered simply for the purposes, as we understand it, of showing that the plaintiff regarded himself as the legally appointed physician, and also that he had in good faith discharged the duties imposed upon him as such physician during the period for which he was employed.

The only question to be considered, then, in connection with defendants' first point, is whether the plaintiff and the defendant society, representing the defendants individually, entered into binding contract relations in the premises. The defendants claim that, being a mere voluntary association, they are not bound by any contract entered into with the plaintiff, unless that contract was entered into in strict accordance with the constitution and by-laws of the association, and that in any event those members of the society who were not present when the election relied on by the plaintiff took place cannot be held liable, unless the action of the society was had in strict accordance with the constitution and by-laws. As hereinbefore stated, the plaintiff did not receive a majority of all the votes cast at the meeting of the society held on December 28, 1900. The testimony of the defendants' witness, Julia O'Donnell, the president of the society, who presided at said meeting, re garding the number of votes cast for and whom, etc., was that the plaintiff, Dr. McDermott, received 23 votes, and that Dr. Boucher received 16 or 17 votes; also, that the plaintiff did not receive a majority of all the votes cast, but that he did receive more than any other candidate, and that no other ballot was taken after the one in which he received the number aforesaid. She also testified that she then declared Dr. McDermott elected, and directed the secretary to notify him of his election. No objection was made to these proceedings. Section 6 of article 3 of the constitution provides that: "When there are more than two candidates for any office, at every unsuccessful balloting the person receiving the lowest number of votes shall be dropped. The voting shall continue in this manner until one candidate has received a majority over all." We do not think that the irregularity referred to in connection with the election of the plaintiff as the physician of the society can properly be held to render the action void. It was merely a technical violation of the rule referred to, and it was doubtless competent for the society, if it saw fit, as it evidently did, to dispense with the formality of taking a second vote. Moreover, by allowing the president to declare the plaintiff elected to

said position without dissent on the part of any one present, his election was practically made unanimous. Again, the record of the society shows that the plaintiff was elected at a regular meeting thereof. It also shows that at the special meeting held on January 2, 1901, the society recognized the fact that the plaintiff was occupying the position to which he had thus been chosen by directing the secretary to notify him of his discharge therefrom; and at a subsequent meeting of the society, held on January 11, 1901, the plaintiff's election to said position was still further recognized by adopting and ratifying the doings of said special meeting, and by choosing Dr. Boucher as the society physician "for the balance of the present term."

In view of all these facts, we think the defendants are clearly estopped from setting up said technical irregularity as a defense to the plaintiff's right of recovery. It is matter of common knowledge that both corporations and voluntary associations often disregard, to some extent, the strict rules of procedure prescribed in their charters or bylaws in transacting their internal affairs; but, so far as we are aware, the courts have not held that such technical variation from prescribed forms relieved them from liability to outside parties doing business with them in good faith upon the strength of what appeared by their own records to have been regularly and properly done. Thus, in Fire Insurance Co. v. Schettler, 38 Ill. 166, it was held that, notwithstanding the charter of an insurance company required their contracts of insurance to be executed in a particular mode, yet, if they adopted a different mode and received the benefit of the contract, they would be bound by it. In the case of Industrial Trust Company v. Green, 17 R. I. 586, 23 Atl. 914, 17 L. R. A. 202, Stiness, J., in delivering the opinion of the court, said: "Many things may be done improperly by an association; but if its members acquiesce in them, and go on as though they were right, they will be bound by them." See, also, 1 Bacon, Benefit Societies (New Ed.) § 40; 2 Mor. Corp. § 752; Henry v. Jackson, 37 Vt. 431. In this connection it is pertinent to remark that it appears that it had been the custom of the defendant society to elect its officers in June and December of each year, instead of electing them in January and July, as required by section 4 of article 3 of the constitution; and also its custom had been to choose its physician at the same time, although by section 2 of article 9 he is required to be chosen at the time of the regular election. This shows that the association regarded itself at liberty to informally modify its rules to some extent; and therefore it clearly has no ground for complaint when a stranger to its particular methods of transacting business insists that such modifications shall not affect his rights.

2. Of course, we need cite no authorities in support of the plaintiff's claim that the

contract with the defendant society was consummated upon his depositing his acceptance thereof in the mail, as aforesaid; the jury having found, as they must have done, under the instruction of the court, that the acceptance was made within a reasonable time after notice of plaintiff's election.

3. As to the contention of defendants' counsel that in any event those members of the society who were not present when the plaintiff's election took place cannot be held liable in this action, we are of the opinion that it is untenable. The presumption is that each person, upon becoming a member of an association of this sort, knows and consents to be governed by the rules thereof; and hence whatever action is properly taken thereunder by the association is as binding upon those members who were absent at the time it was taken as upon those who were present. See Supreme Lodge, etc., v. Knight, 117 Ind. 496, 20 N. E. 479, 3 L. R. A. 409. This individual liability arises, not on the ground that the members of such an association are partners, for they are not (Textile Workers' Union v. Barrett, 19 R. I. 663, 36 Atl. 5), but on the ground that the society is their agent in the premises; and hence they are bound by its acts if done within the scope of its authority. In Mechem on Agency, § 69, the author says: "The power of appointing agents may rest with a single individual or with a number of individuals. It rests with a single individual in those cases in which he is the only person authorized to make the appointment, and also in those cases in which he, in common with others or as the representative of others, has the power to make it. It rests with a number of individuals in those cases where the conjoint action of all is necessary in dealing with the subject-matter." The same author also says (see section 72) in referring to associations, clubs, societies, etc., "that it is now quite generally settled that such organizations are not partnerships, and that the members are not liable as partners, but that their liability is to be determined upon the rules of principal and agent. The principle which applies here is the familiar one that no person can be charged upon a contract alleged to have been made upon his responsibility, unless it can be shown that to the making of that contract upon his responsibility he has given his express or implied assent. This assent may be expressed in a variety of ways and at one of several times. It may have been given in advance by consenting to be bound by all contracts of a certain kind that may be made in the future; it may be given contemporaneously with the making of the contract; and it may also be inferred from a subsequent ratification. Thus, where it is a part of the scheme or purpose of the organization, as provided by its articles of association, charter, constitution, or by-laws, that certain contracts or obligations in behalf and

upon the credit of the organization may be entered into either upon the vote of a majority or at the discretion of the committee or officer, or upon any other lawful contingency or event, every person who becomes a member by so doing impliedly consents in advance to be bound by any contract or obligation of the kind contemplated, entered into under the circumstances prescribed." See, also, Lawler v. Murphy, 58 Conn. 294, 20 Atl. 457, 8 L. R. A. 113; White v. Brownell, 2 Daly, 329. As what we have thus said covers all of the exceptions taken by defendants' counsel touching the plaintiff's election and his general right of recovery, as well as the particular one above discussed, there is no occasion for considering those exceptions separately.

The defendants' next exception is based upon a ruling of the trial court whereby the plaintiff was allowed to introduce in evidence a newspaper notice that he had resumed his practice after a period of illness. At the time of the plaintiff's election to said position it was known to the society that he had been ill, and it is evident that some doubt was entertained by some of the members as to whether he would be able to resume his practice by the 1st of January, 1901. It was stated by one of the members at said meeting that he would be on duty the first of the new year, as he in fact was. This newspaper notice was referred to by the plaintiff in his formal acceptance of the election in question, and was also before the society on the evening of January 2, 1901, when the order of withdrawal aforesaid was made. The evident purpose of its introduction was to show that the plaintiff was physically competent to discharge the duties of said office at the time when he was elected; and, although its probative force in this direction was evidently very slight, yet, in view of the circumstances, we cannot say that it was wholly irrelevant. At any rate, it was of such small account that, even if erroneously admitted, it was not of such a character as to have possibly prejudiced the defendants' rights, and hence is no ground for a new trial. Collier v. Jenks, 19 R. I. 493, 34 Atl. 998; York v. Stiles, 21 R. I. 225, 42 Atl. 876; Schnable v. Public Market, 24 R. I. 480, 53 Atl. 634; Ames v. Potter, 7 R. I. 269. The exception to the refusal of the trial court to instruct the jury that the plaintiff was not entitled to recover, because he had not declared specially on the contract of employment, is clearly untenable.

4. When a contract has been fully executed, and nothing remains to be done but the payment of the price agreed on, the plaintiff may declare specially on the contract, or he may rely on the common counts in indebitatus assumpsit. Dermott v. Jones, 2 Wall. 1, 17 L. Ed. 762; Ency. Pl. & Prac. vol. 2, p. 1009, and cases in note 1.

Among the plaintiff's requests to charge the jury, which were granted subject to de

fendants' exceptions, were the following: "(2) When one enters into the service of another for a definite period, and continues in the employment after the expiration of that period without any new contract, the presumption is that the employment is continued on the terms of the original contract. (3) An express request from the defendants to the plaintiff to render services for them implies an agreement on the defendants' part to pay the plaintiff what his services are reasonably worth." Defendants' counsel states in his brief that he insists upon these exceptions, because, while the requests may be true as propositions of law, they had no bearing upon the points in issue in the case, and hence to charge them was to confuse the jury, and cause them to believe that other matters were in issue than those that really were, and thereby divert their minds from the real points in issue, which were: Was Dr. McDermott duly elected physician? and did he accept within a reasonable time? 5. We think the first of said requests was pertinent, because the case shows that no compensation was expressly fixed upon by the society at the time of plaintiff's election; and, as it appears that he had previously served the defendants in the same capacity at a given rate per capita, the presumption was, in the absence of any statement or agreement to the contrary, that his compensation would be the same as that previously paid. Booth v. Rubber Co., 19 R. I. 696, 36 Atl. 714.

6. As to the second of said requests, we fail to see that it was strictly pèrtinent, because the court had already instructed the jury, and very properly so, that, if they found that the plaintiff was entitled to recover, their verdict should be for the sum of $90, with interest; and this was all he claimed. Moreover, the court had already refused to instruct the jury, in accordance with the defendants' fifth request, "that Dr. McDermott, if he recovers at all, can only recover what his services are reasonably worth." But conceding, as we do, that said third request was not pertinent, yet we fail to see that it could have prejudiced the defendants or the jury in the least. Indeed, it is very evident from the verdict rendered that the jury were neither confused nor misled by the instruction, as they followed the instruction previously given by the court as to the amount, as they clearly should have done under the evidence in the case; that is to say, the evidence shows that, if the plaintiff was entitled to recover at all, he was entitled to recover that amount and no more.

Some other exceptions were taken by the defendants' counsel during the trial; but upon careful examination thereof we fail to find that they are material to the question in issue, and hence they need not be particularly considered. The evidence is sufficient to sustain the verdict.

only those defendants who in the courts of Baltimore city dispute under oath the claim of a plaintiff who in an action on a contract has filed with his declaration the contract sued on, together with a statement, under affidavit, of the true amount in which the defendant is indebted to him thereon. If in such cases it turns out that the defendant has not in fact a good defense to the action, the law visits upon him the payment, "in addition to the costs of the suit," of such counsel fee, not exceeding $100, as the court may, upon application, allow to the successful plaintiff. The obvious purpose of the statute is to discourage the interposition of feigned or insufficient defenses by imposing as a penalty upon the unsuccessful defendants, having set them up in the class of cases referred to, the payment of the counsel fee, in the discretion of the trial judge, in addition to the liability for those costs which follow the judgment as a matter of course. The fee is a special allowance made upon particular grounds, and is not part of the costs of suit, in the ordinary sense.

As

its allowance to the plaintiff is conditioned upon his having gained the suit, a consistent application of the principle upon which it is allowed requires us to hold that, when the judgment by which his success is supposed to have been established is reversed upon an appeal, the allowance of the fee should fall with it. In our opinion, the learned judge below was right in granting the motion to quash the fi. fa., and we will affirm his order passed for that purpose.

Order appealed from affirmed, with costs.

(96 Md. 504)

SAVIN et al. v. WEBB et al. (Court of Appeals of Maryland. Jan. 22, 1903.) WILLS-CONSTRUCTION LEGACIES VESTED INTERESTS-DEATH OF LEGATEE BEFORE PAYMENT-RECOVERY.

1. Where infant legatees under a will bequeathing certain legacies in trust for them payable on their arriving at age, took vested interests in such legacies, and were entitled to interest thereon from testator's death, on the decease of one of such legatees before arriving of age his administrators were entitled at once to recover the legacy and interest accrued, and distribute the same as a part of the legatee's estate.

2. Where a will bequeathed certain legacies to grandchildren to be paid at such time as the executors find convenient, but not before the legatees arrived at 21 years of age, the direction to the executors to pay when convenient referred to the exigencies of the settlement of the estate only, and did not confer on such executors power arbitrarily or capriciously to delay payment.

Appeal from circuit court of Baltimore city; Henry Stockbridge, Judge.

Action by Bella Woolsey Savin and others, as administrators of the estate of Wilbur M. Webb, deceased, against William Rollins Webb and others, to recover a legacy. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

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

Frank Gosnell and James W. McElroy, for appellants. Rhodes & Rhodes, for appellees.

SCHMUCKER, J. This is an appeal from an order passed on a petition filed in a case which was before us upon a previous appeal in Webb v. Webb, 92 Md. 101, 48 Atl. 95, 84 Am. St. Rep. 499. By reference to that case it will appear that the late William Prescott Webb, of Baltimore city, by his last will, gave a legacy of $5,000 to each infant child of his deceased son, George Prescott Webb, to be paid to the child at such time as the executors named in the will find convenient, but not before he arrived at 21 years of age. A controversy having arisen among the parties interested in the estate of the testator as to whether these legacies were vested or contingent, and also as to the date from which they bore interest, a bill was filed by the grandchildren against the executors in the circuit court of Baltimore city for a construction of the will and for an administration of the legacies as a trust fund under the supervision of the court until the time arrived for their payment to the legatees. In that proceeding an order of court was passed, after an answer had been filed and testimony taken with the assent of the executors, in which they were treated and designated as trustees of the legacies, and were required to give bond for the discharge of their trust, and to pay a monthly sum to the guardian of the infant legatees until the further order of the court. That order was complied with, but the case came here upon an appeal from a subsequent order ratifying an auditor's account, and we found it necessary, in deciding the issue then presented to us, to construe the will, and pass upon the nature of the legacies. We there held that the legacies to the grandchildren were vested, and not contingent, and, it appearing from the evidence that the testator had assumed to stand in loco parentis to the legatees, we also held that the legacies bore interest from the date of his death. We further held that the case should be retained by the circuit court for the further administration of the legacies as being in the nature of a trust fund. Since the case was last before us, Wilbur Morrison Webb, one of the legatees, died before reaching the age of 21 years, and letters of administration on his personal estate issued out of the orphans' court of Baltimore city to the present appellants. After they had duly qualified as administrators, they filed their petition in the pending case in the circuit court, setting out the facts which we have mentioned, and asserting their title to the legacy of $5,000, held for the benefit of their intestate by the appellees as executors and trustees under the