the wagon threw the back gate of the wag-| to justify a recovery, by the granting of its on open, and it knocked me in the street." first and second prayers; or, secondly, that Martin G. Moses testified to having witnessed the accident, and that the wagon "was the Monumental Brewing Company's wagon," and said that "two men generally go on them bottled beer wagons." its theory of the case should have been presented to the jury by granting its fifth and sixth prayers. We are clearly of opinion that the defendant's first and second prayers, which sought to have the case withOn behalf of the appellant company, as drawn from the jury, were properly rejectdefendant below, Jacob Kimmerle, in re- ed. Without recapitulating all of the evisponse to the inquiry of its counsel whether dence, it was proven beyond controversy he was one of the parties in charge of the that the appellee, while in the discharge of wagon, replied: "Yes, sir; I was the driv- his duty in a place where he had a right to er." And, when asked if anybody else was be, was struck and injured by the open and with him at the time, said that Mr. Creamer unfastened end gate of the appellant comwas with him, and, in response to the fur-pany's wagon, which was swung open in ther inquiry whether they were both with such a situation and under such circumthat one wagon, replied, "Yes, sir." He fur- stances that a jury would be justified in ther testified that Creamer opened the end finding the person guilty of negligence who gate of the wagon before the car was in was responsible for opening it or permitting sight at all, and that the gate was all of the it to hang open and unfastened as the car way back to the side of the wagon and ex- approached and passed. tended only about six inches from the side The party in control of the wagon was of the wagon. He further testified that charged with knowledge that cars were the gate is really two gates; one opening to liable to pass and repass on the electric railthe left and the other to the right. "It ex-way tracks, and it was his duty, in allowing tended the full width of the wagon. It just the wagon to stand in the public highway goes simply on the inside of the wagon." near the car tracks, to so place and manage The wagon was a large one and was about it, as far as he reasonably could, as not to 9 or 10 inches inside of the hub. He was at expose the occupants or persons in charge the side of the wagon when the accident of passing cars to danger of collision with occurred, between the car and the wagon, any portion of it. There is no testimony right at the rear of the mules, and saw the that there was not space sufficient between gate hit the conductor, who was near the the car tracks and sidewalk to have placed rear of the car at the time. Creamer testi- the wagon so far from the tracks that its fied for the company that he was not em- swinging gate would not be liable to get ployed by it, but that he was on its wagon in the way of passing cars, nor that the working for Mr. Kimmerle. He further tes- gate could not easily have been fastened tified that on the occasion of the accident back to the side of the wagon, instead of the car was about a square away from the being allowed to hang free. If the plaintiff's wagon when he opened the end gate of the witnesses are to be believed, the gate of the latter, and that he did not move the gate wagon was swung round immediately upon after it was opened, nor did the wagon the passing car, although both Kimmerle, change its position. He also said that the the driver, and Creamer, say that they saw gate was only about six inches away from the car approaching a square off. If, on the the wagon when the car approached. He other hand, the defendant's witnesses are saw the conductor when he was struck look- to be believed, that the gate was opened being forward and having hold of the handle fore the car came in sight, as Kimmerle of the car with his left hand. This witness says, or when it was a square off, as Creamthought that the hub went outside of the er says, it was permitted to hang open and body of the wagon about five inches, and unfastened until the car with the conductor that the tread of the wagon was about as on the foot board reached it. In either wide as the car tracks on Curtis avenue, but event, there was evidence from which the it would not track with the rails, because jury might have found the defendant comthey were steam road rails. pany guilty of negligence. Geiselman v. Schmidt, 106 Md. 585, 68 Atl. 202; Philadelphia, W. & B. R. Co. v. Stebbing, 62 Md. 515. As the first and second prayers make no reference to the pleadings, the question presented by them was, as has been frequently decided by this court, whether the facts that might properly be found by the jury from the evidence constituted a good cause of action. South Baltimore Co. v. Muhlbach, 69 Md. 406, 16 Atl. 117, 1 L. R. A. 507; Walsh v. Taylor, 39 Md. 592; Home Friendly Soc. v. Robertson, 100 Md. 88, 59 Atl. 279. The reference to the proceedings in the first There is but one bill of exceptions in the record, and that brings up the action of the court below on the prayers. The plaintiff offered three prayers, all of which were granted. The defendant offered eight prayers, of which the court granted the third, fourth, seventh, and eighth, and rejected the others. The form of the plaintiff's prayers, which are appropriate to the appellee's theory of the case, is not made the subject of criticism on the brief of the appellant, which contends: First, that the case should have been taken from the ju made to the pleadings, as the two words | exercise of reasonable care that it was stophave neither technically nor ordinarily the ped by them at a safe distance from the same meaning. The "pleadings" in a case track so that the gate would not come in consist of the statements of the litigants in contact with any one on a passing car or its legal form of the facts constituting the footboard, and the conductor and motorman cause of action and grounds of defense by on the car thought the same thing, then the which the issue in made up. The "proceed- defendant was not guilty of negligence, and ings" in an action at law, on the other hand, there could be no recovery against it. Now consist rather of the successive acts done the evidence of both the conductor and moand steps taken as parts of the suit during torman was that they approached the wagon its progress whether by court, counsel, clerk, toward its front and did not see its end or jury. Words and Phrases, vol. 6, pp. gate at all until they were even with the 5410, 5632, 5633; Wilson v. Allen, 3 How. wagon, and that it was under those circumPrac. (N. Y.) 369-371; Uhe v. Chicago, M. & stances that they thought the car could safeSt. P. Ry. Co., 3 S. D. 563, 54 N. W. 601; ly pass it. Their conclusion, thus arrived at, At., Top. & St. Fé R. R. Co. v. Brassfield, 51 of their ability to pass the wagon in safety, Kan. 167, 32 Pac. 814; Amis v. Smith, 41 could throw no light upon the question of U. S. 313, 10 L. Ed. 973; United States v. the negligence vel non of the management Knight, 39 U. S. 307, 10 L. Ed. 465. In of the end gate by the parties in charge of Strom v. Montana Cent. Ry. Co., 81 Minn. the wagon. The evidence did not tend to 346, 84 N. W. 46, it was said that the term show that they thought they could pass the "proceedings" in its most comprehensive sense wagon in safety with its end gate open and "includes every step taken in a civil action ex- swung round toward the car. The sequel cept the pleadings." Without adopting all of showed that the wagon did not stand at a the views expressed in the cases to which we safe distance from the track. The true queshave referred, we think that the words tion in that connection was whether the de"pleadings" and "proceedings" are not suffi- fendant's servants in charge of the wagon ciently alike in import to be interchangeably had in fact exercised reasonable care to employed in instructions to juries. When it place it so that cars might pass it in safety, is desired in framing prayers to make spe- not whether they believed they had done so. cial reference to the pleadings in the case, The sixth prayer was bad because it was it should be done by referring to them as based upon a mere conjecture, of which such. there was no evidence, that the suction from The defendant's fifth prayer asked the the passing car drew the end gate toward court to instruct the jury that if they "find it and so injured the conductor. It was also that the defendant's servants in charge of bad in assuming that the wagon with its its wagon had stopped the wagon and open-end gate hanging open was at a safe dised the gate, and that in stopping the wagon where they did they exercised reasonable or ordinary care to stop it at a sufficient distance from the track, so that the gate would not come in contact with any one on the car or footboard, and that in the exercise of such reasonable care they believed that the wagon and gate were a safe distance from the track, and shall further find that the motorman of the car also thought the gate was a safe distance from the car, so that he could safely go by it, then the jury are in structed that there was no negligence on the part of the defendant's servant in charge of its wagon, and the verdict of the jury should be for the defendant." The sixth prayer was as follows: "If the jury find that the defendant's wagon was standing with its gate open at a safe distance from the car tracks, and that the injury to the plaintiff occurred by the suction from the passing car suddenly drawing the gate towards the car, then the verdict of the jury should be for the defendant." These prayers were also properly refused. The fifth prayer was based upon the hypothesis that if the jury found that the defendant's serv tance from the car tracks, if the end gate, when drawn by the suction of a passing car, would reach and strike its conductor as he passed along its footboard in discharge of his duty. We have not thought it necessary to con sider the question whether there was legally that Creamer, who was said by some of the sufficient evidence to go to the jury to show witnesses to have opened the end gate of the wagon, was one of the defendant's serv ants in charge of the wagon. We did not enter upon that discussion because in our opinion the testimony tending to show that the driver, who was confessedly in charge of the wagon, permitted its end gate to hang unfastened, after it was open, in such position that it could swing round and injure a person on the footboard of a passing car, was of itself legally sufficient evidence to go to the jury of negligence on his part as the servant of the defendant company, the owner of the wagon, within the scope of his employment. The judgment appealed from must be affirmed. (109 Md. 229) SHEA & MCGUIRE v. EVANS. (Court of Appeals of Maryland. Jan. 20, 1909.) 1. SPECIFIC PERFORMANCE (§ 59*)-CONTRACT made such misrepresentations to induce her to purchase that a court of equity should not specifically enforce the contract if otherwise binding. It is proper to say that the plainTO PURCHASE-DEFENSES. tiffs deny that charge, and claim that the A contract to purchase will not be specif-defendant had every opportunity to inform ically enforced, where the property is subject herself of the actual condition of the propto restrictions against the maintenance of a hotel, saloon, blacksmith shop, tannery, slaugh- erty. The lots were advertised for sale at terhouse, etc., and against the building of a public auction on September 28, 1907, and house costing less than $2,000, and where such the appellee seems to have been first attractrestrictions are not shown to have been broughted to them by that advertisement. She, toto the purchaser's attention before the contract was made. [Ed. Note. For other cases, see Specific Performance, Cent. Dig. §§ 257-277; Dec. Dig. 8 95.*] 3. SPECIFIC PERFORMANCE (§ 117*)-UNPLEADED DEFENSES. A contract to purchase land will not be specifically enforced, where a defense is shown by the evidence, though it is not pleaded. [Ed. Note.-For other cases, see Specific Performance, Dec. Dig. § 117.*] Appeal from Circuit Court No. 2 of Baltimore City; James P. Gorter, Judge. Bill by Shea & McGuire against Marie M. Evans. Decree dismissing the bill, and plaintiffs appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ. C. Augustus Grason and John J. Hurst, for appellants. Stevens T. Mason and Wm. S. Bansemer, for appellee. BOYD, C. J. This is an appeal from a decree dismissing the bill filed by the appellants against the appellee, which sought to compel the latter to specifically perform a contract for the purchase of 16 lots laid out in what is called "Ruxton Heights" in Baltimore county. The only written evidence of the contract is an account stating that Mrs. Evans bought of Shea & McGuire 16 lots at Ruxton Heights, known as Nos. 1, 2, 3, etc. (giving the numbers of each), stating the consideration to be $3,000, crediting that "By cash on account of sale 50.00," and showing balance due, $2,950. That was signed by Mrs. Evans, and was dated October 22, 1907. It will be observed that the contract is very meager-not stating when the balance of the purchase money was to be paid, where the description of the lots could be ascertained, whether there is a plat on record, or the character of title held by the vendors. Some testimony was taken as to the value of the lots; but in the view we take of the case, it will be unnecessary to discuss that. The defense mainly relied on by the defendant was that the plaintiffs gether with some others, was present at the appointed time, but the weather was very bad, and no sales were made. Afterwards the appellants sought to interest the appellee in the lots. Mr. McGuire, one of them, dealt with her, persuaded her to go over the property at a later time, and sold her the lots stated in the account. He endeavored at first to get her to give $300 for each lot, with 10 per cent. discount for cash, then $4,000 for the 16, afterwards $3,500, and finally accepted her offer of $3,000. He then made out the account and had her sign it. Two days later the two appellants and the appellee went to the office of Mr. Bansemer, who was her attorney, and Mr. Shea handed him a memorandum of restrictions to go in the deed, which was as follows: "That no part of any building shall be erected nearer to the avenue or street front than fifteen (15) feet; that no barn, stable, coop, or other outbuilding shall likewise be erected nearer to the avenue or street front than fifty (50) feet." Afterwards Mrs. Evans called on Mr. McGuire and said she wanted a provision inserted in the deed that Maywood avenue was to be macadamized, which he said was not necessary, and then she referred to the fact that there was no electric road there, and finally demanded the $50 she had paid them. The next morning Mr. Bansemer notified Mr. McGuire that Mrs. Evans had decided "to cancel that contract," to use the language of the witness. She claims that misrepresentations were made as to an electric road to be constructed, as to macadamizing the avenue, and as to certain proposed purchasers for some of the lots. But what seems to us to be the most material objection to the enforcement of the contract is the fact that the use of the property is subject to a number of restrictions, which are not shown to have been brought to her attention before she made the purchase, or to have been agreed upon by her. The following admission is stated in the record: "Note.-It is admitted by counsel for the plaintiffs, at the request of counsel for the defendant, that the restrictions under which the title to the lots in question must be conveyed by the plaintiffs are as follows, to wit: "That the parties of the second part, the vendee, will not at any time within fifteen years from the day of the date of the deed for said premises, erect or build, or cause or permit to be erected or built, upon said premises, or any part thereof, any hotel, tavern, drinking saloon, blacksmith, carpenter or wheelwright shop, steam mill, tannery, slaughterhouse, skin drying establishment, livery stable, glue, soap, candy or starch manufactory, or use for any offensive purpose or occupation; that no part of any building shall be erected nearer to the avenue or street front than fifteen feet; that no barn, stable, coop or other outbuilding shall likewise be erected nearer to the avenue or street front than fifty feet; and that no dwelling house costing less than two thousand dollars shall be erected or built upon said premises within fifteen years from the date of the deed that may convey the aforesaid premises to the vendee.'" It is true Mr. Shea swore that on the day the lots were offered at public auction he told Mrs. Evans of the various restrictions, but she positively denied any knowledge of them. Mr. McGuire, who had most of the dealings with her, admits that he did not tell her, and said that, so far as he knew, she never saw the memorandum first above quoted until it was given to Mr. Bansemer. It is certainly remarkable that, even when they went to counsel to have the deed prepared, the memorandum then given did not include some of the most important restrictions which it is now admitted "the title to the lots in question must be conveyed" subject to. Another striking fact is that both the advertisement of the sale of lots when offered at public auction, and the account which Mr. McGuire took the precaution to have Mrs. Evans sign, are silent on the subject of the restrictions. It is clear that the plaintiffs failed to establish that Mrs. Evans either agreed to take the property subject to such restrictions, or had any notice when she entered into the contract that the lots were to be so subject. It cannot be denied that some of the restrictions might affect the market value of the lots, and might prevent a sale of some of them. It is doubtless true that many neighborhoods are made more attractive by having some such restrictions as these, but whether they are desirable must depend largely upon the character of the settlement. The prohibition of the erection of a hotel, blacksmith, carpenter, or wheelwright shop, steam mill, or livery stable, not to mention some of the other buildings named, would prevent some persons from purchasing, and to prohibit the erection of a dwelling house costing less than $2,000 might deter others from buying lots. That minimum is 10 times what the appellee was to pay for each lot. Another peculiarity is that the restrictions are for 15 years from the date of the deed. The testimony is that these lots had been laid out for about 16 years, and it may be that some of them were sold years ago, and may now, or soon be, free from such restrictions, would continue to be so for 15 years. But whatever the effect of such restrictions may actually be, the court cannot say that they will not affect the value of the lots, and Mrs. Evans cannot be required to accept them, subject to the restrictions, in the absence of more satisfactory proof that she had agreed to them, or knew of their existence. Vendors owning lots with restrictions such as these must inform purchasers of them, or see that they are aware of them, if they want courts of equity to enforce such contracts. When a contract for sale of land has nothing more in it than there is in this, a court of equity, if called upon to enforce it by the vendor, will require him to have a good, marketable title, and the same principle would demand that it be free from such restrictions as would likely affect its value, in the absence of satisfactory proof that it was known by the vendee that the property was to be conveyed subject to them. In Gill v. Wells, 59 Md. 492, Judge Miller said: "It is a principle, obviously just, in the law relating to the specific performance of contracts that the vendee is entitled to have that for which he contracts, before he can be compelled to part with the consideration he agreed to pay. He is not bound to take an estate fettered with incumbrances, by which he may be subjected to litigation to procure his title; and, in a contract such as is sought to be enforced in this case, the vendee is not bound to accept anything short of an unincumbered legal estate in fee, the title to which is free from reasonable doubt." Or as said in Dobbs v. Norcross, 24 N. J. Eq. 327, and quoted with approval in Gill v. Wells: "He shall have a title which shall enable him, not only to hold his land, but to hold it in peace; and, if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value." That restrictions such as these would prevent a court of equity from decreeing the specific performance of a contract for sale of lands subject to them is shown by the decisions in Halle v. Newbold, 69 Md. 265, 14 Atl. 662, Newbold v. Peabody Heights Co., 70 Md. 493, 17 Atl. 372, 3 L. R. A. 579, Peabody Heights Co. v. Willson, 82 Md. 186, 32 Atl. 386, 1077, 36 L. R. A. 393, and others that might be cited. In Halle v. Newbold, after holding that a grantor could impose a restriction in the nature of a servitude or easement upon the land that he retains, for the benefit of that he sells or leases, etc., it was said that "such servitude is an incumbrance upon the land upon which it is imposed, and the title of the owner of the land is not clear." We are relieved from discussing the question whether such restrictions are binding upon purchasers who take with notice, as the above cases have settled that, and in this case we have seen from the admission made of record, that the lots must be conveyed subject to the restrictions named. ed, we will affirm the decree upon this ground. We are somewhat at a loss to know why this defense was not distinctly made in the answer, but there was evidence on the subject which was not excepted to; and, being thus brought to the attention of the court, the contract should not be enforced by a court of equity. Decree affirmed, appellants to pay the costs above and below. (109 Md. 404) struct the view of the vat, he was guilty of contributory negligence. Servant, Cent. Dig. § 706; Dec. Dig. § 234.*} [Ed. Note.-For other cases, see Master and 7. TRIAL (§ 169*)-DIRECTION OF VERDICT. Where plaintiff is not entitled to recover in any aspect of the case as presented by the evidence, it is the duty of the trial court to take the case from the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. 381; Dec. Dig. § 169.*] Appeal from Baltimore Court of Common Pleas; Henry D. Harlan, Judge. Action by the State, for the Use of Mary STATE, to Use of LINTON, v. BALTIMORE E. Linton, against the Baltimore Manufac MFG. CO. (Court of Appeals of Maryland. Jan. 12, 1909.) turing Company. Judgment for defendant and plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRIS- 1. MASTER AND SERVANT (8 227*)-INJURIES [Ed. Note.-For other cases, see Master and TION OF RISK-RISKS ASSUMED. Clarence A. Tucker and Joseph N. Ulman, for appellant. Wilton Snowden, Jr., and Vernon Cook, for appellee. The THOMAS, J. The appellant, Mary E. Linton, plaintiff below, brought this suit to recover damages for the death of her husband, An employé, who, knowing the circumstan- Robert A. Linton, which she claims resultces under which the employer carries on his ed from the negligence of the appellee, the business, has accepted the employment, or continued in it, assumes such risks incident to the Baltimore Manufacturing Company. discharge of his duties as are open or obvious. deceased was in the employ of the appel[Ed. Note. For other cases, see Master and lant, and to maintain the action it was nece Servant, Cent. Dig. § 610; Dec. Dig. § 219.*] essary for the appellee to allege and show 3. MASTER And Servant (§ 224*) that the appellant was negligent in the perTION OF RISK-RISKS ASSUMED. formance or nonperformance of some duty The rule of assumption of risk applies with much greater force to an employé whose duties it owed him, and that his death was the redo not subject him to the risk, but who vol-sult of such negligence, without any negliuntarily exposes himself in pursuit of his own convenience. ASSUMP [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 654; Dec. Dig. § 224.*] 4. MASTER AND SERVANT ( 155*)-INJURIES TO SERVANT-HIDDEN DANGERS-WARNING. An employer is bound to notify an employé of risks arising from hidden or secret causes, where he knows of them himself, or by the exercise of ordinary care ought to have known of them. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 310; Dec. Dig. § 155.*] 5. MASTER AND SERVANT (8 234*)-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE. Where an employé, who fell into an unguarded vat of boiling molasses, must have known that there were probably dangerous appliances in the room to which he would be exposed in the dark, even if he had never been in the room before and knew nothing of the vat, and entered the room when it was so dark that it was necessary to feel his way by touching the wall, and was not impelled by any call of duty, but by some convenience of his own, he was guilty of negligence barring a recovery. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 706; Dec. Dig. § 234.*] 6. MASTER AND SERVANT (8 234*)-INJURIES TO SERVANT-CONTRIBUTORY NEGLIGENCE. Where an employé who, in passing through a room, fell into an unguarded vat of boiling molasses, knew, or by reasonable care ought to have known, of the vat, and there was very little steam in the room arising from the vat, and an electric light over it, and nothing to ob gence on his part directly contributing thereto. So the declaration, which contains two counts, charges in the first count, as the negligence complained of, that the appellee did not furnish the deceased with a "safe and proper place in which to do and perform the work required of him, and did expose him to unnecessary risk or danger while so employed, in that the defendant on or about the 18th day of November, 1906, assigned him to work in a room in their said plant where there was a large cistern or vat filled with boiling molasses, the mouth of which said cistern was flush or nearly so with the surface of the floor, juries from which he died. |