us. (106 A.) ing over the phone, I would take the car of [ond, fifth, sixth, and seventh of which were bottles providing they were of the weight we granted, the court below noting on the first agreed on in the modified contract, but I would prayer that it was granted in connection not take any more, and I would consider the with defendants' first, second, and fourth contract canceled, and if that was satisfactory I would take the car of bottles. He said, "That prayers. The defendants offered four prayis perfectly satisfactory, and I want you to ers, all of which were granted in connection give me some of your future business,' and I with plaintiff's first prayer, except the third, then said I would not object to that. That is which was rejected. The reporter is requestthe entire conversation which passed between ed in his report of the case to set out the * That he told Mr. Smart at the in- plaintiff's first and seventh prayers, and terview the reason for refusing to take any defendants' first, second, and fourth prayers, more bottles was that the company had suffi- correcting the error in the record so as to cient bottles. That not hearing from him they make the note of the court below on the had been obliged to go into the market and buy them. ** * That he did not tell Mr. plaintiff's first prayer refer to defendants' Smart in the telephone conversation that he first, second, and fourth prayers. would not take any more bottles now. That he told him that he would take the carload if they were of the weight agreed on, and he would not take any more, if Mr. Smart was satisfied with this, and would consider the contract canceled, and that Mr. Smart agreed to this. That in the telephone conversation with Mr. Smart on June 15th, Mr. Smart asked about the carload of bottles, and witness told him they had been rejected. Mr. Smart replied that they had gone to considerable expense and the bottles were in Baltimore, and he wished as a favor that the defendants would take them; the witness finally told him that if they complied with the terms of the modified contract he would take them provided Mr. Hamburger agreed to cancellation of the contract as to the balance. That he explained that not having heard from Mr. Hamburger he had been obliged to fill his wants in the open market. Mr. Smart replied it was perfectly satisfactory, and he trusted I would give them some of our future business, which I said I surely would not object to. Mr. Smart said he would send the bill of lading and the invoice to the office and these were received." The verdict and judgment being in favor of the plaintiff, the defendants appealed. [1] The first twelve exceptions in the record are to the admission of evidence offered for the purpose of showing the meaning of the words "average 16 ounce weight" in the original contract, as understood by those engaged in the manufacture and sale of bottles. As we have stated, the original contract was modified by changing the specification in regard to the weight of the bottles, and it is conceded, or not denied, that the bottles furnished under the contract as modified were satisfactory. The evidence referred to in these exceptions could not therefore have injured the defendants, and its admission could not constitute reversible error. roll Springs Co. v. Schnepfe, 111 Md. 429, 74 Atl. 828. Car The thirteenth and fourteenth exceptions refer to the evidence of Mr. Smart, offered in rebuttal, denying that he made certain statements in his conversation with Mr. Straus tending to show that he agreed to abandon the further performance of the contract, and were not pressed in this court. The defendants accepted and paid for the carload of bottles shipped on the 7th of June, but refused to accept any more bottles The ruling of the court below in granting under the contract, and this suit was brought the plaintiff's prayers, rejecting the defendby the plaintiff to recover damages for an ants' third prayer, and granting the defendalleged breach of the contract by the de- ants' first, second, and fourth prayers in confendants. nection with plaintiff's first prayer, and the To the declaration, setting out the contract action of the court in overruling defendants' and the alleged breach thereof by the defend-motion to strike out certain evidence, are ants, the defendants filed five pleas. The made the subject of the fifteenth exception. first and second pleas are that the defend-In reference to this exception the appellants ants did not promise and were never indebt- contend (1) that the plaintiff's first and seved as alleged. The third plea alleges that enth prayers are bad because they instructed the contract was canceled by an agreement the jury that a shipment of the first carload of the parties. The fourth plea is that after of bottles "within a reasonable time under the delivery and acceptance of one carload the circumstances" after March 29th was a of bottles, the plaintiff abandoned perform-compliance with the contract requiring it to ance of the contract and the defendants as- be shipped "as soon as possible"; (2) that the sented thereto, and the fifth plea charges plaintiff's first prayer ignores the evidence that the plaintiff defaulted in the perform-relied on by the defendants to show that the ance of its contract, and in consideration of contract had been canceled by agreement, the defendants agreeing to accept one carload of bottles the plaintiff agreed to cancel the contract, and the defendants did accept and pay for said carload of bottles. or the performance thereof had been abandoned by the plaintiff with their assent; and (3) that the granting of the defendants' first, second, and fourth prayers in connecAt the conclusion of the testimony the tion with the plaintiff's first prayer made the plaintiff offered seven prayers, the first, sec- | instructions of the court below confusing and misleading, and practically deprived the de-sured in this case that according to 'the law fendants of the benefit of their said prayers. merchant,' and an unbroken chain of decisions [2] 1. As to the first contention, it would seem sufficient to say that the only evidence in the record bearing upon the question whether there was unnecessary delay in the shipment of the first carload of bottles is the evidence to the effect that the bottles were shipped "as soon as possible,” and the jury, in determining whether the first carload was shipped "within a reasonable time," was confined to that evidence. But we also think the of courts of justice, is deemed due diligence by the holder of a bill of exchange or promissory ble for the payment thereof, viz. that notice note, seeking to charge those contingently liamust be transmitted to those sought to be charged by it by the next mail after the dishonor of the bill or note. Such a rule, as an unbending principle of law, has not, and we think ought not, to be applied to contracts like that now before this court." In the later case of Providence Ins. Co. v. prayers properly construed the contract. It Martin, 32 Md. 310, the court said: "A contract by a manufacturer to furnish certain specified goods 'as soon as possible' means within a reasonable time, regard being had to the manufacturer's ability to produce them, and the orders he may already have in hand." And it is said on page 529: "The phrase 'as soon as possible,' in an insurance policy requiring that notice of loss, accident, or death should be given to the insurer as soon as possible, means with due diligence, or without unnecessary procrastination or delay under the circumstances of the case." "The construction of the terms 'forthwith' and 'as soon as possible,' in a similar condition in a fire policy, with reference to notice and furnishing preliminary proof of loss, has been settled in this state by the decision in Edwards v. Baltimore Fire Ins. Co., 3 Gill, 187." As pointed out in Edwards v. Ins. Co., supra, and as indicated by the authorities which the words "as soon as possible" may cited by the appellants, there are cases in be given, and have been given, a different construction, but in a contract like the one under consideration we think the construction given them in the prayers more in ac cord with the intention of the parties, es In the case of Edwards v. Baltimore Fire pecially in view of the statement in the conIns. Co., 3 Gill, 176, the court said: "To enable us to judge of the correctness of the court's conduct in granting this prayer, the meaning of the terms 'forthwith' and 'as soon as possible,' as used in the policy of insurance, ought to be ascertained. To give to them their literal import would, in almost every case of loss by fire that occurs, strip the insured of all hope for indemnity for the loss incurred; and policies of insurance against fire would, as to the insured, instead of being contracts of indemnity, as they profess to be, become engines of fraud and injustice in the hands of the underwriters, and a recovery by the insured would be rarely, indeed, if ever, practicable. Such a construction therefore has not been sanctioned by courts of justice. The true meaning of those terms is with due diligence, or without unnecessary procrastination or delay, under all the circumstances of the case. See Inman v. Western Fire Ins. Co., 12 Wendell [N. Y.] 461, where it was determined that 'forthwith,' in such a policy, imposes upon the insured nothing more than what is called due diligence, under all the circumstances of the case; and Cornell v. Le Roy, 9 Wendell [N. Y.] 166, where it was decided that 'the assured is, as soon after the fire as possible, to deliver in a particular account of such loss or damage, and this means no more than it is to be done with due diligence, under all the circumstances of the case; there is to be no unnecessary procrastination or delay.' In all ordinary cases, whether due diligence has been used by the insured or he has been guilty of no unnecessary procrastination or delay under all the circumstances of the respective cases are questions of fact to be determined by a jury. We cannot assent to the proposition, contended for by the appellees, that the same transmission of notice of loss necessary to constitute due diligence on the part of the in tract of their understanding "that date of shipments are approximate." [3] 2. The first prayer, as granted by the court in connection with the defendants' first, second, and fourth prayers, is not open to the objection urged by the appellants. If the plaintiff's first prayer had been the only instruction granted by the court, there would be force in the appellants' contention. But this court has repeatedly said that in passing upon the instructions of the lower court the granted prayers should be read together. Gill v. Staylor, 93 Md. 471, 49 Atl. 650; Woodward v. Tyng, 123 Md. 119, 91 Atl. 166; Hochschild, Kohn & Co. v. Cecil, 131 Md. 70, 101 Atl. 700. In the case of Woodward V. Tyng, supra, the court said: "Objection has been made by the defendant to the granting of the third and fourth prayers of the plaintiff, because of the fact that these prayers did not embody the contention of the defendant as to the cancellation of the contract by use of the long-distance telephone; but that aspect of the case was fully covered by the seventeenth prayer of the defendant. Both parties were entitled to have their respective theories of the case presented to the jury by the instructions of the court; had the defendant offered no prayers there would be force in the contention of the defendant that the granting of the third and fourth prayers of the plaintiff was a segregation of their case to the prejudice of the defendant; but inasmuch as the defendant had offered a prayer upon this very subject, the criticism now made of the plaintiff's prayer is unsound." In the case at bar the learned judge noted on the plaintiff's prayer that it was granted (106 A.) in connection with the defendants' prayers, the effect of which was to call the jury's attention to the evidence relied on by the defendants, and to instruct them that notwithstanding they found the facts set out in the plaintiff's prayer, if they also found the facts stated in the defendants' prayers their verdict should be for the defendants. This method of instructing the jury is in accord with the practice in this state, and is recognized in Robinson v. Silver, 120 Md. 47, 87 Atl. 699, and B. & O. R. R. Co. v. Whitehill, 104 Md. 303, 64 Atl. 1033. [4, 5] 3. The third contention of the appellants presents a somewhat different question. The facts stated in their first, second, and fourth prayers, if found by the jury, would have constituted a complete bar to a recovery by the plaintiff, and it was not necessary in granting them to note on the prayers that they were granted in connection with plaintiff's first prayer. But as all of the prayers were to be considered by the jury together, the fact that the court below noted on the defendants' prayers that they were granted in connection with plaintiff's first prayer could not have confused or misled the jury, as the plaintiff's prayer limited the finding of the jury to "the issues joined on the first and second pleas of the defendants," while the defendants' prayers instructed them that if they found the facts therein stated their verdict should be for the defendants. While it was not necessary to note on the defendants' prayers that they were granted in connection with the plaintiff's first prayer, and it did not tend to simplify the instructions of the court, we would not, under the circumstances, be justified, in view of the conclusion of the plaintiff's first prayer, in holding that the action of the court misled the jury and deprived the defendants of the benefit of their prayers. No special objection is urged against the other prayers of the plaintiff, and the defendants' third prayer is covered by the plaintiff's second prayer, which was granted. We have considered the ruling on the prayers notwithstanding the exception includes the ruling of the court on the motion of the defendants to strike out certain evidence, and notwithstanding this court has repeatedly called attention to the rule which requires a separate bill of exceptions for each ruling of the court excepted to, the action of the court on the prayers being regarded as a single act. Morrow Brothers v. Arthur and Boyle (No. 6, Appeals, January Term, 1919) 106 Atl. 356. No question was raised in the court below, or in this court, as to the right to sue the Gosman Ginger Ale Company and William L. Straus together, and it follows from what has been said that the judgment appealed from must be affirmed. Judgment affirmed, with costs. (134 Md. 305) WAGNER et al. v. MAYOR AND CITY (Court of Appeals of Maryland. April 8, INSANE PERSONS 86 - SUPPORT-STATU- Code Pub. Civ. Laws, art. 59, § 45, making the maintenance of lunatics in state hospitals a charge against their estates, applies to one found not guilty of crime because insane and committed under sections 4 and 5; such inmate not being a criminal under punishcommitted under section 1 upon his own appliment, but being similarly situated with one cation or that of another. Appeal from Circuit Court of Baltimore City; Morris A. Soper, Judge. Petition by the Mayor and City Council of Baltimore for an order by the court directing Winifred P. Wagner and another, committee of George E. Wagner, Jr., lunatic, to pay them a stated sum for the support and maintenance of such lunatic. From a granting by the court of the order prayed for, the committee appeal. Order affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and CONSTABLE, JJ. J. Royall Tippett, of Baltimore, for appellants. Alexander Preston, Asst. City Sol., of Baltimore (S. S. Field, City Sol., of Baltimore, on the brief), for appellee. PATTISON, J. In 1905 George E. Wagner, Jr., was tried in the criminal court of Baltimore city upon the charge of murder. The jury returned a verdict of "not guilty because of insanity," and he was committed by the court to the Springfield State Hospital, where he has been an inmate ever since. The appellants upon their petition were appointed committee for said George E. Wagner, Jr., by a decree of the circuit court of Baltimore city passed on the 28th day of March, 1918. The petition alleged that the personal estate held by him at such time amounted to $850, consisting of money in bank and a one-half interest in an insurance policy upon the life of one George W. Wagner, in which George E. Wagner, Jr., was a beneficiary. On the 26th day of April, 1918, the mayor and city council of Baltimore filed their petition in said circuit court of Baltimore city, in which they alleged that the said George E. Wagner, Jr., was an insane patient in said institution, where he was being supported and maintained at the expense of the city, and where he had been so supported and maintained at its expense since Decem For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ber 15, 1905, and asked the court to pass an [as the case may be, shall as herein specified order authorizing and directing the said committee to pay to them the sum of $300 for the support and maintenance of said George E. Wagner, Jr., from April 22, 1915, to April 22, 1918. The committee answered the petition, stating that the estate of said Wagner at such time was approximately of the value of $800, and admitting that he was an insane patient at the Springfield Hospital, where he had been confined since December 15, 1905, but denied that he was a charity patient of the city, in that he "was tried before a jury in the criminal court of Baltimore city on an indictment charging him with murder, and the jury returned a verdict of 'not guilty because of insanity,' and the judge presiding in said court sentenced the said George E. Wagner, Jr., to the Springfield Hospital for the Insane," and alleging therein that, under such proceedings and commitment, they were not legally bound to pay the city for the support and maintenance of said lunatic while so confined in said institution. Upon the petition and answer the court passed its order, dated September 20, 1918, directing the committee to pay to the petitioners out of the estate of George E. Wagner, Jr., the said sum of $300 for his maintenance and support in said institution for the period above named, and the further sum of $100 per annum for such period as the said George E. Wagner, Jr., should continue to be at said hospital at the expense of the city of Baltimore. From that order this appeal has been taken. Section 4 of article 59 of the Code (1912) of Public General Laws of this state provides that "When any person indicted for a crime or misdemeanor shall allege insanity or lunacy in his defense, the jury impaneled to try such person shall find by their verdict whether such person was, at the time of the commission of the offense, or still is insane, lunatic or other wise." pay into the state treasury the sum of one hundred dollars ($100.00) for the board, care and treatment of such patient, and the remaining amount required for the board, care and treatment of such insane person shall be paid from the treasury of the state." This section then provides that such expense shall be a charge upon the county (or city) from whence the patient is sent, and also provides for the notice required to be given by the superintendents of the different hospitals of the state to the local officials as to the amount of such charges, and also states the procedure to be followed in the collection of the same, etc. The section then concludes by saying, "The amount incurred by any county of this state for treatment and maintenance of any insane persons in the State Hospital for the Insane shall be a charge against the estate of such person," subject to the qualifications and restrictions therein mentioned which are not necessary to be stated in reaching a decision in this case. It is contended by the appellants that this latter provision of section 45, making the costs of the treatment and maintenance of insane persons in the state hospitals a charge against the estate of such persons to the extent of $100 per annum, does not apply to those patients who are committed to such institutions under sections 4 and 5, above stated, but that it applies only to those insane persons who are committed to such institutions under section 1 of said article, upon the certificate of physicians, or, if demanded under the provisions of that section, by the inquisition or finding of a jury. If we correctly understand the contention of the appellants, section 45 does not apply to sections 4 and 5, because of the fact that the confinement of such insane persons under those provisions of the Code partakes of a criminal punishment, and, for such reason, should be distinguished in deciding the question before us from cases where the party is confined for treatment upon the application And by section 5 of said article it is pro- of himself or others in his behalf. vided that "If the jury find by their verdict that such person was at the time of committing the offense and then is insane or lunatic, the court before which trial was had shall cause such person to be sent to the almshouse of the county or city in which such person resided at the time of the commission of such act, or to a hospital, or some other place better suited in the judgment of the court to the condition of such prisoner, there to be confined until he shall have recovered his reason and be discharged by due course of law." In the appellants' brief it is said: "If the lunatic in this case was confined in the penitentiary or Baltimore city jail, it would certainly not be necessary for his committee to pay for his support or maintenance in the penitentiary or city jail." It is thus seen that the appellants treat the confinement of insane persons committed under the provisions of sections 4 and 5 of article 59 of the Code as if such confinement was in the nature of a sentence imposed upon such insane person as a punishment for By section 45 of said article it is provided the commission of some offense or crime. that "For each patient in any state hospital for the insane from Baltimore city or any one of the counties in the state the said city or county, In this they are in error. It is true that Wagner was indicted for the commission of a crime and was tried, but in the trial of the case it was shown that he was insane, (106 A.) OWN STOCK-VALIDITY. PURCHASES OF and consequently, in legal contemplation, he, | own stock is illegal and void, under Code Pub. being insane, could not commit a crime. The Civ. Laws, art. 23, §§ 1-468. verdict of the jury was that he was not 4. CORPORATIONS 376 guilty because insane, and, when this conclusion was reached, he was thereafter to be treated simply as an insane person, just as he would have been treated under section 1 in the absence of any criminal charge against him. When his insanity was established by the verdict of the jury, he was no more a criminal than if he had never been charged with a crime, and he was in precisely the same situation as one who had, upon his own application or upon the application of others, been adjudged insane, under the provisions of section 1 of said article. A contract whereby one contracted to give his services to a corporation at a certain salary and for a certain number of shares of stock to be paid for out of the dividends earned by such stock, the corporation having option of 30 days to take such stock at par value at any time he should cease to be in the service of the creditors were not prejudiced, under Code Pub. corporation, was not illegal, where rights of Civ. Laws, art. 23, §§ 1-468, prohibiting a corporation from purchasing its own stock; the employé having merely a qualified interest in the stock. It is true a different procedure was fol- 5. CORPORATIONS 93 SUBSCRIPTION TO lowed in reaching that conclusion, but, when STOCK-FORFEITURE. his insanity was established, his confinement thereafter was and must be regarded and treated in the same manner as if he had been confined under section 1 of said article. We may also add that in applying said provision of the statute we discover no sound reason for distinguishing between those who upon application are adjudged insane and those who are found to be insane under setions 4 and 5 of said article; nor do we find anything in the statute indicating that it was the intention of the Legislature to create such distinction. From what we have said the order of the court below will be affirmed. Order affirmed, with costs to the appellee. A contract may be discharged by a change in the parties thereto, as by the substitution of a new party in the place of one of the original parties by agreement of all, although the terms otherwise remain the same. 2. CONTRACTS 240-SUBSTITUTION OF NEW PARTY. Although a discharge of an old contract by a change in the parties thereto, as by the substitution of a new party in place of one of the original parties, requires the consent of all of the original parties and of the parties to the new contract created, such assent may be implied and such substitution and discharge may arise or be shown by circumstances and conduct of the parties showing an acquiescence in the change. A contract whereby one agreed to furnish services to a corporation at a certain salary and for certain stock that was to be paid for out of the dividends on such stock was in effect a profit-sharing contract, and a clause in the contract giving the corporation the right to take back such stock at par if the employé should cease to be in the service of the corporation did not provide for a forfeiture. 6. MASTER AND SERVANT 30(1) DISCHARGE OF SERVANT. Where a servant gaye his employer to understand that he intended to resign if a request for increase in salary was not granted, he cannot complain that a dismissal at such time was wrongful. Appeal from Circuit Court of Baltimore City; Morris A. Soper, Judge. Suit by J. Harry Williams against the Maryland Glass Corporation and another. Decree for defendants, and plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, and URNER, JJ. Arthur W. Machen, Jr., of Baltimore (Machen & Williams and Herbert C. Forrester, all of Baltimore, on the brief), for appellant. George Ross Veazey and Vernon Cook, both of Baltimore, for appellees. BURKE, J. This suit involves the ownership of 40 shares of the capital stock of the Maryland Glass Corporation, incorporated under the laws of Maryland. This stock at one time appeared upon the books of the corporation in the name of J. Harry Williams, the appellant, but was subsequently transferred to Isaac E. Emerson under the circumstances hereinafter stated. The primary object of this suit, as ap PURCHASES OF pears from the bill of complaint, is to obtain a decree requiring the defendants to restore the appellant's name to the registry or list of stockholders in the defendant company, and to accord to him all the rights of 3. CORPORATIONS 376 For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1 |