"Now, gentlemen, there cannot be a man on this jury but what knows of his own knowledge and good common sense that a man can stop a locomotive in going 30 rods, if he tries to. Thirty rods is a good distance. If you don't believe it, walk it off some time and see the distance. There was a locomotive coming down there light; didn't have anything attached to it; he had automatic brakes, air brakes, that he could clutch right onto both sides of the wheels. It was an up-to-date locomotive, he says, the Pacific type of locomotive, and, if he tried to stop that locomotive, he certainly could have done it. * All of us have been in stations, perhaps larger than Newport, when a train has come in with a string of cars behind it, and come in full force, right into that station, going fast, when the engineer has stopped the train there, going a very few car lengths. It don't take 30 rods for a man to stop a locomotive, if he tries to." * Atl. 154, 156 (49 Am. St. Rep. 600). We have seen only one case where the precise question under consideration has been passed upon. In Union P. R. Co. v. Shannon, 33 Kan. 446, 6 Pac. 564, it was held that the distance in which a railroad engine running at a certain speed can be stopped is not a matter of common knowledge. That the importance and necessity of furnishing proof upon this question was fully realized by counsel is shown by his attempt to introduce testimony relative thereto; and upon his failure to do so he did not content himself with asking the jury to find the fact from their own knowledge (State v. Currier, 106 Atl. 491) but sought to supply the deficiency by his own statement of the fact. had any weight with the jury, the defendants were deprived of that fair and impartial trial which was their right under the law. The facts stated, of which there was no evidence, were not only material and pertinent, but related to a vital issue in these cases, and it cannot be said, as a matter of law, that the jury was not influenced by them in returning the verdicts. There being no retraction of the improper remarks, nor finding by the court that the jury were not affected thereby, the verdicts must be set aside. [5] The argument went beyond the scope of legitimate advocacy. The defendants were To this argument the defendants excepted. entitled to have the cases tried and verdiets The evidence in the case did not justify these rendered wholly upon the evidence introducstatements. There was no evidence to showed at the trial, and, if the improper remarks in what distance a locomotive could be stopped, except that of the engineer operating the engine. He testified that he made an emergency application of the brakes and put on sand to stop the engine just south of the north end of the cross-over, which was less than 30 rods north of the crossing where the accident occurred, and stopped about twice the length of the engine south of the crossing, and that he made a good stop. The plaintiffs attempted to offer evidence as to the distance in which a locomotive going 25 miles an hour could be stopped, but the witness offered failed to qualify as an ex-directed verdicts, and to the admission of pert. No witness stated that it did not take 30 rods to stop a locomotive running 25 miles an hour, or gave any evidence from which such an inference could be drawn. Exceptions to the denial of nonsuits and evidence overruled; exception to argument sustained; verdicts set aside; new trial granted. All concurred. -- TITLE [4] It is claimed that it is a matter of common knowledge that an engine running 25 miles an hour on a downgrade of oneKEY et al. v. KEY. (No. 21.) fifth to one-half per cent. can be stopped in less than 30 rods, and therefore that it was (Court of Appeals of Maryland. April 9, 1919.) competent for counsel to make the statement 1. STATUTES 115(3) SUBJECTobjected to without evidence. This contenMATTER OF ACT. tion cannot be sustained. The rule that alActs 1916, c. 325, entitled "An act to repeal lows counsel to argue and the jury to decide sections 1 to 23 (inclusive), 25, 26, 27, 28, and a question without evidence, on the ground 31 of article 46 of the Code of Public General that it is a subject of common or general Laws of Maryland, title 'Inheritance,' in Bagknowledge, "is strictly limited to a few mat-by's Annotated Code of said Laws, and to enact in lieu thereof four new sections of article ters of elemental experience in human nature, commercial affairs, and everyday life." 46, to be known as sections 1, 2, 3 and 4 of said article, thereby assimilating the law relat4 Wig. Ev. § 2570. ing to the real property of decedents more nearly to the law relating to personal property," is not violative of Const. art. 3, § 29, requiring every law to relate to but one subject, to be described in title. The distance in which a locomotive going at a certain rate of speed can be brought to a stop is knowledge that the average man in the community does not possess. Information of this character is acquired by experience in operating engines, such as men in general do not have. "In estimating time, distance, and rapid motion, the mass of men are inexpert." Huntress v. Railroad, 66 N. H. 185, 190, 34 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (106 A.) 1, 2, 3 and 4 of said article, thereby assimilating the law relating to the real property of decedents more nearly to the law relating to per and section 3, relating to surviving spouse's 3. DESCENT AND DISTRIBUTION 52(2) SHARE OF SURVIVING WIFE-CONSTRUCTION Acts 1916, c. 325, § 3, giving surviving spouse the same share in the land within the state belonging to deceased spouse at time of his or her death as such surviving spouse would take in personal property of deceased spouse, though deceased spouse died testate, gives surviving wife a one-third in fee of land belonging to deceased husband at time of his death, and not merely a life estate therein; such being the interest she would take under the statute in his personal estate. Appeal from Circuit Court, St. Mary's County, in Equity; B. Harris Camalier, Judge. Bill by Mattie M. Key against John B. Key and others. From an order overruling defendants' demurrer to plaintiff's bill, defendants appeal. Order affirmed, and cause remanded. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and CONSTABLE, JJ. F. Snowden Hill, of Upper Marlboro (George H. Calvert, Jr., of Washington, D. C., and John H. T. Briscoe, of Leonardtown, on the brief), for appellants. Wm. Meverell Loker and L. Allison Wilmer, both of Leonardtown (Daniel C. Hammett, of Washington, D. C., on the brief), for appellee. BRISCOE, J. This case presents for consideration the question of the validity vel non of chapter 325 of the Acts of the General Assembly of Maryland of 1916, and, if valid, a proper construction of the act itself. The precise question to be determined is: What interest and estate does the surviving widow, the appellee in this case, take under the act in the real estate of her deceased husband, at the date of his death; that is, is she entitled as heir to one-third of the real estate in fee simple belonging to her husband at the date of his death, or has she a life estate only in one-third thereof? The act in question is entitled: "An act to repeal sections 1 to 23 (inclusive), 25, 26, 27, 28, and 31 of article 46 of the Code of Public General Laws of Maryland, title 'Inheritance,' in Bagby's Annotated Code of said Laws, and to enact in lieu thereof four new sections of article 46, to be known as sections By this act it will be seen that certain sections of article 46 of the Code were repealed, and four new sections were enacted in lieu thereof. Section 2 of the act provides: "If said intestate leave a widow or a surviving husband, such widow or surviving husband shall take, as an heir, the same share or proportion of such lands, tenements or hereditaments as a widow or surviving husband takes as a distributee in the personal property of her or his deceased spouse under such laws relating to personal property." The first half of section 3, of the act provides: "A surviving husband or widow shall take, as heir, the same share or proportion in any lands, tenements, or hereditaments within this state belonging to the deceased spouse at the time of his or her death, though such deceased spouse die testate, which such surviving husband or widow would take in the personal property of a resident spouse so dying testate." The facts of the case appear from the pleadings and are substantially as follows: Joseph Harris Key died in St. Mary's county on the 7th of June, 1917, leaving a last will and testament dated the 18th of April, 1913. The will was admitted to probate in the orphans' court of St. Mary's county on June 26, 1917, and letters testamentary were granted to the executors named in the will. By the will the testator disposed of a large and valuable estate, both of real and personal property, but made no devise or bequest to his wife, but by the fifth clause of the will states: "I recognize fully the rights of my wife to a dower and distributive share, but I think they death than at this time." can be more satisfactorily adjusted after my Mr. Key was married three times, and the present appellee is his third wife. They were married on April 24, 1895, and there was no child or descendant of a child by this marriage, but the defendants are children by his former marriages. [1] The contention that the statute is invalid, because its title does not conform, but offends section 29 of article 3 of the Constitution, which requires that "every law enacted by the General Assembly shall embrace but one subject, and that shall be described in its title," is clearly without merit and cannot be sustained. The title of the act, as up on examination will be seen. states that it is an act to repeal certain designated sections of article 46 of the Code, title "Inheritance," and to enact in lieu thereof four new sections, to be known as sections 1, 2, 3 and 4 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of article 46 of the Code, thereby assimilating the law relating to the real property of decedents more nearly to the law relating to personal property. This title is not only broad and comprehensive, but contains a sufficient description of the purpose and subject-matter of the act. It is the usual title, form, and method adopted, in legislation, for the repeal of sections of statutes and the enactment of new sections in lieu of the repealed sections, and has been frequently sustained by recent decisions of this court. Worcester County Com'rs v. School Commissioners, 113 Md. 305, 77 Atl. 605; Ruehl v. State, 130 Md. 196, 100 Atl. 75; Dahler v. Washington Sanitary Commission, 133 Md. —, 106 Atl. 10. [2] The second objection, that the act is invalid because it disturbs and impairs existing and vested property rights, is manifestly not tenable. The language of the third section of the act is clear and definite that the surviving husband or widow shall take as heir a certain share in lands, tenements, or hereditaments, within this state, belonging to the deceased spouse at the time of his or her death, though such deceased spouse die testate. The statute, it will be seen, operates only upon property owned and belonging to a person at the time of his or her death, and does not in any way change or divest rights or estates in property already descended or vested, nor does it affect the enjoyment and ownership of property by the owner during his life. Similar laws of this character have been held valid and constitutional, and approved by the Supreme Court of the United States in a number of cases, and by the appellate courts of the various states. In Noel v. Ewing, 9 Ind. 38, the Supreme Court of Indiana, in applying a statute of that state which provided that if a husband die, testate or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, held that husbands as a class were embraced in the language used, and that it included all those who sustained this relation at the date of the statute or might sustain that relation in the future. The court said: "Upon the dissolution of marriage by death, the law applies." If persons married before the act were intended to be excepted, the law would have been so written. It establishes the death of one of the parties as the future event on which it is to operate. It simply determines the legal effect of death as a future event, on the rights of the surviving wife. In United States v. Fox, 94 U. S. 315, 24 L. Ed. 192, the court there said: "The power of the state to regulate the tenure of real property within her limits, and the mode of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised by its owners, is undoubted. It is an established principle of law, everywhere recognized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively diction the property is situated." subject to the government within whose juris It is very apparent in the present case that there are no vested rights involved, and the authorities in support of the validity of such legislation are too numerous and well settled to permit it to be disturbed at the present date. The cases and citations from the various text-writers upon the subject will be found cited and collected in the appellants' brief in the case of Safe Deposit Co. v. Gittings, 103 Md. 494, 63 Atl. 1046, and will be found to fully sustain the conclusion we have reached in this case. Sturgis v. Ewing, 18 Ill. 176; Brettun v. Fox, 100 Mass. 234; Randall v. Krieger, 23 Wall. 148, 23 L. Ed. 124. [3] We therefore hold that the act of 1916 is valid and constitutional, and as it was in force at the death of Joseph H. Key, by a proper construction and by the express language of the act, the appellee, his surviving widow, takes as heir one-third in fee in the lands and tenements belonging to him at the time of his death; the same being the same interest that she takes under the statute in his personal estate. It is conceded that the surviving widow did not elect to take dower, as provided in section 4 of the act, and that the testator left personal property of value more than sufficient to pay his debts. There is nothing in the Maryland cases relied upon by the appellants in conflict with the construction we have given this act. They rest upon dissimilar statutes, and have no application here. The conclusion we have reached in this case in no way disturbs what we said in those cases. For the reasons stated, the order of the circuit court for St. Mary's county, overruling the defendants' demurrer to the plaintiff's bill, will be affirmed. Order affirmed, and cause remanded, with costs to the appellee. (106 A.) 2. SALES 81(3) - CONSTRUCTION OF CONTRACT "AS SOON AS POSSIBLE." A contract providing for delivery of goods "as soon as possible" required delivery within a reasonable time under the circumstances, citing Words and Phrases, vol. 1, pp. 528, 529. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, As Soon as Possible.] 3. TRIAL 296(7)—INSTRUCTIONS. In seller's action for breach of contract, seller's granted prayer held, in view of buyer's prayers granted, and notation referring thereto on seller's prayer not to ignore evidence relied on by buyer to show that the contract had been canceled by agreement or performance abandoned by seller with buyer's consent. 4. TRIAL 295(1)-INSTRUCTIONS. joint credit of the defendants, and that said con- second pleas of the defendants. Plaintiff's Seventh Prayer. If the jury find the execution and delivery of the letters of February 5 and March 29, 1917, offered in evidence, and that the plaintiff shipped the first carload of bottles within a reasonable time after receipt of the letter of March 29, 1917, under the circumstances then existing as shown by the evidence, then the jury are instructed that such shipment was a performance on the part of the plaintiff of the requirement of the contract as to the time of shipment of the first car. (Granted.) Defendants' First Prayer. All of the prayers are to be considered by that plaintiff delivered to defendant the Gosthe jury together. The jury is instructed that if they shall find man Ginger Ale Company one carload of bottles, and that said defendant accepted and paid for the same, and that plaintiff and said defendant mutually agreed that the contract between them should be canceled as to the remaining bottles provided for therein, then the verdict of the jury must be for both of the defendants. (Granted in connection with plaintiff's first prayer.) Defendants' Second Prayer. The jury is instructed that if they shall find that Smart, president and general manager of Appeal from Superior Court of Baltimore plaintiff, and Straus, president of defendant the City; Walter I. Dawkins, Judge. "To be officially reported." Action by the Keystone Bottle Manufacturing Company, Incorporated, against the Gosman Ginger Ale Company of Baltimore City and another. Judgment for plaintiff, and defendants appeal. Affirmed. Following are plaintiff's first and seventh prayers and defendants' first, second, and fourth prayers referred to in opinion: Plaintiff's First Prayer. If the jury find that the written contract dated February 5, 1917, offered in evidence, was executed by the parties thereto and delivered to the plaintiff, and that the sale evidenced by said contract was made by plaintiff on the Gosman Ginger Ale Company, agreed that the Defendants' Fourth Prayer. The jury is instructed that if they shall find that plaintiff delivered to defendant the Gosman Ginger Ale Company one carload of bottles and that said defendant accepted and paid for the same, and that plaintiff abandoned the performance of the contract as to the remaining bottles thereby provided for and that defend For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ants. (Granted in connection with plaintiff's first prayer.) ants assented to such abandonment, then the [ of the Ginger Ale Company, because all of verdict of the jury must be for both the defend- them did not weigh 16 ounces. Mr. Hamburger contended that the terms of the contract which required the bottles to be of "average 16 ounce weight" meant, according to "a general custom of the trade," bottles weighing between 15 and 16 ounces; and that the samples complied with the contract; that if the appellants insisted upon bottles weighing not less than 16 ounces the contract should specify an average weight of 17 ounces, which would cost more than the "average 16 Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and CONSTABLE, JJ. C. John Beeuwkes and Eli Frank, both of Baltimore (Frank, Emory & Beeuwkes, of Baltimore, on the brief), for appellants. R. Contee Rose and S. S. Field, both of ounce weight" bottles. The appellee also Baltimore, for appellee. wrote the appellants as follows: THOMAS, J. On the 5th of February, 1917, the appellants, the Gosman Ginger Ale Company, a Maryland corporation, and William L. Straus, and the appellee, the Keystone Bottle Manufacturing Company, a corporation of Uniontown, Pa., entered into the contract shown by the following order and acceptance: "February 5, 1917. "Keystone Bottle Mfg. Co., Inc., Uniontown, Pa.-Gentlemen: Enter our order for 1,500 gross flint, plain crown Soda's machine made, average 16 ounce weight, and 151⁄2 ounce capacity to filling point. Price in bulk one thousand (1,000) gross at $4.75 per gross, five hundred (500) gross at $5.00 per gross, f. o. b. factory, Uniontown, Pa., with the carload freight rate that is in force January 25, 1917, allowed to Baltimore, Md. Terms 30 days, or 1% cash in 10 days, and these terms are applicable from date of invoice. Shipment via Baltimore and Ohio R. R. Company, in approximately 250 gross cars, first car as soon as possible, second car 30 days thereafter, 3d car 30 days after second shipment, 4th car 30 days after 3d shipment, 5th car 30 days after 4th shipment, 6th car 30 days after 5th shipment. We understand of course that date of shipments are approximate. "Payment of this account is guaranteed by Mr. W. L. Straus, of the Monumental Brewing Co., of Baltimore, Md., and for further reference, refer to the National Marine Bank, National Exchange Bank, Cahn-Coblens & Co., Monumental Brewing Co., Joel Gutman Co., all of the above are of Baltimore, Md. "Shipments to be made to the Gosman Ginger Ale Co., Baltimore, Md. "Yours very truly, "[Signed] Gosman Ginger Ale Co., "W. L. Straus, Prest. "Accepted: Keystone Bottle Mfg. Co., Inc., W. H. Smart, Prest. "I personally guarantee payment of above account in accordance with the terms set forth herein above. Wm. L. Straus." "Mar. 20, '17. "Mr. W. L. Straus, Pres., Gosman Ginger Ale Co., Baltimore, Md.-Dear Sir: Mr. Oscar Hamburger, who has had charge of the order of bottles that we have for you, has written us under recent date 'in your approving of the sample lot of the one-half (2) gross you stipulate that the bottles must be 16 oz. down weight, and if such, all would be satisfactory, etc.' "We have written him in the meantime 'that in order to make all bottles 16 oz. down weight we would necessarily have to have a base weight of 17 ounces and that the additional ounce required would be at an extra cost of twenty-five (25) cents per gross, etc.' But at the same time the sample bottle sent you, while there may have been a slight variation in weight, are the regulation 16 oz. weight bottle. He, Mr. Hamburger, in turn writes us under date of the 19th, that since receipt of our communication he had been trying to get in communication with you in order to impart the circumstances, but had failed to do so, and he was incidentally called out of the city and would be absent for the week and suggest that we communicate with you direct in order to get a prompt decision in the matter, as this is most important, both the promptness and decision referred to. We do not have any too much time to complete your order and under these treacherous conditions, resupplies, etc., it is most imperative that we have your approval by return mail if at all possible. The question is, if bottles are required to be 16 oz. down weight we must have a 17 ounce base weight from which to work, and this incurs an additional cost of twenty-five (25) cents per gross. Of course, we understand perfectly, that the bottles must hold average 16 oz. brimfull or 151⁄2 oz. to filling point. "We again wish to impress you that delays are most dangerous and we would kindly ask you to give us an immediate response. If regulation 16 oz. bottles will meet with your approval, we can proceed promptly with the order and soon have a car ready for shipment. But again reiterate that if you exact 16 oz. down weight we must have the 17 ounce base. "Respectfully yours, "Keystone Bottle Mfg. Co." The sale of bottles referred to in said contract was negotiated by Mr. Oscar Hamburger, the agent of the appellee in Baltimore Mr. Straus insisted, however, that nothing City, and shortly after the date thereof he less than a 16-ounce bottle would be satissubmitted to the appellants samples of the factory, and also refused to pay more than bottles to be furnished, which had been sent the price agreed upon. Accordingly other to him by the appellee. These samples were samples of bottles were sent to and approv not satisfactory to Mr. Straus, the presidented by the appellants, and the matter was |