(109 A.)

the nieces mentioned in the residuary clause [ running through the entire third paragraph of the fourth paragraph of the husband's a power of disposal more or less qualified. will. The defendants claim that under the She could dispose "during her lifetime," and third paragraph of the husband's will she she could use the proceeds of sale "for her took title in fee to the residue of his real support and maintenance or the support and estate and an absolute title in the residue of maintenance of any person or number of perhis personal property, and that the gift over, sons that she may select." These qualificaof what should remain undisposed of by her, tions cannot be ignored even though more to the nieces mentioned in the residuary sweeping and unlimited language immediateclause of the fourth paragraph of his will, ly follows. is repugnant and void; also that even if it be held that the widow did not acquire title in fee to his real estate and an absolute Interest in the personal property, yet under his will she did have a power to dispose of his estate by will and that in fact under this power, she has fully done so and no residuum remains for the nieces mentioned In the husband's will.

SAXTON et al. v. STINE et al. (No. 38.)

"Baltimore, Md., July 18, 1917.

(Court of Appeals of Maryland. Dec. 9, 1919.) entire accumulation to July 1, 1918, of dry

1. SALES

82(3)-PAYMENT DUE WHEN GOODS ARRIVED AND WERE WEIGHED.

"We have bought of Reliable Rag & Metal Company, Harrisburg, Pa., stock on hand and leather scraps on the following basis: "Upper leather scraps, including chrome and combination tanage, at twenty-six dollars ($26.00).

"Sole leather scraps, free of leather board and foreign matter, at fifteen dollars ($15.00). "All per ton of 2,000 lbs. basis f. o. b. cars Harrisburg, Pa.

Under contract for purchase of dry leather scraps for a certain period, "all per ton of 2,000 pounds basis f. o. b. cars; * * weights guaranteed at destination; terms, cash," payment became due when the goods arrived at destination and had been weighed, "Shipment in carload lots of not less than and the seller's refusal to make further ship- thirty thousand (30,000) pounds each, as ready ment, except where a draft was drawn on pur-in seller's bags to be paid for at ten cents (10¢) chasers with bill of lading attached, was a each or returned freight prepaid, buyer's option, and each lot to be loaded separately in breach. the car. Weights guaranteed at destination. Terms, cash.

2. SALES 418(1) BUYER ENTITLED TO AT LEAST NOMINAL DAMAGES ON SELLER'S BREACH.

If there was a breach of contract by the sellers, the purchasers were at least entitled to nominal damages, and the court erred in instructing that the purchasers had offered no evidence legally sufficient to entitle them to re

cover.

"Accepted: Reliable Rag & Metal Company, per Ike Woolf. [Signed] Thomas H. White & Co."

close of the plaintiffs' testimony, was:
The prayer offered by the defendants at the

"The defendant prays the court to instruct the jury that the plaintiff has offered no evidence legally sufficient to entitle the plaintiff to

Appeal from Baltimore Court of Common recover, and their verdict must be for the dePleas; James M. Ambler, Judge.

Suit by Harry W. Saxton and another, copartners trading as Thomas H. White & Co., against Morris Stine and another, copartners trading as the Reliable Rag & Metal Company. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

fendant."

This prayer was granted by the court, a verdict rendered in accordance therewith, judgment entered on the verdict, and the plaintiffs appealed.

The action of the court in granting the defendants' prayer constitutes the sole bill of exceptions in this case. More than one-half of the record is occupied with correspondence which passed between the parties to the suit with reference to the performance or nonperap-formance of the provisions of the contract.

Argued before BOYD, C. J., and BURKE, PATTISON, and STOCKBRIDGE, JJ.

William H. Surratt, of Baltimore, for pellants.

J. Purdon Wright and Armstrong Thomas, both of Baltimore, for appellees.

Each side claims the contract to have been broken, and each side insists that the other was the party by whom the breach was committed.

STOCKBRIDGE, J. The plaintiffs, appel- The case is somewhat complicated by reason lants in this case, brought suit against the of the fact that the parties had dealings with defendants to recover damages for an alleged one another in regard to matters not embracviolation of contract upon the part of the ed under the terms of the contract, and in defendants. The plaintiffs were residents of the accounts kept by the plaintiffs all dealBaltimore City, and the defendants of Harris-ings, whether under the contract or not, were burg, Pa., and the suit was in the form entered in the one account, so that it is difof a nonresident attachment, which the plaintiffs caused to be issued and laid in their own hands. The case which was tried, and from the judgment in which an appeal was taken to this court, is the short note case, in which, acting under the instructions of the court, a verdict was rendered in favor of the defendants,

The contract, as it appeared in what was supposed to be a copy filed with the pleadings, differed slightly from the contract as proved by the plaintiffs' witness, Yeatman, though one of the points of difference has a material bearing upon this case. The contract as testified to was as follows:

ficult from the testimony which the record contains to determine what payments made by the plaintiffs to the defendants were for goods purchased under the contract herein before recited, and what, if any, were properly applicable to transactions not covered by the contract.

The defendants, in their requests for remittances, frequently used the term "advances," which might be applicable to either class of goods purchased. The plaintiffs, on the other hand, in most instances made reference to particular carload lots, and as frequently happens, where a similar course of the shipment of goods and remittances for them takes

(109 A.)

place, it is not always easy to determine what | upon the ground that no damages were proven was the real intent of the parties with regardi. e., no substantial damages-and this is thereto.

[1] On October 31, 1917, the defendants made a request for further payments, which was declined by the plaintiffs upon the alleged ground that the $3,500 already "advanced" to them more than covered payment in full for all goods received under the contract, whereupon the defendants notified the plaintiffs verbally that no further shipment would be made to them, except in cases where, when the shipment was made, a draft was drawn upon White & Co., with bill of lading attached, for the carload of goods then shipped. This position was subsequently reiterated by correspondence. This condition of shipment announced for the first time on October 31st, by Mr. Woolf, one of the defendants, to Mr. Yeatman, was clearly a breach of the contract, unless such a mode of procedure was authorized by the contract entered into on July 18th.

to a large extent true, for the evidence offered by the plaintiffs is not of a character to afford the court a basis for the proper instruction as to the measure of damages.

[2] But, if there was a breach of the contract upon the part of the defendants, the plaintiffs were at least entitled to nominal damages, and the action of the court in instructing the jury that the plaintiffs had offered no evidence legally sufficient to entitle them to recover was error.

For the reasons indicated, the judgment below will be reversed, and the case remanded for a new trial.

Judgment reversed, and cause remanded for a new trial; the appellees to pay the costs.

In re PAULLIN'S ESTATE.

(Prerogative Court of New Jersey. Dec. 31, 1919.)

of the husband.

-

OF WIFE IS DOMICILE OF

2. DOMICILE ~4(1)—OF ORIGIN CONSIDERED

DOMICILE AFTER ABANDONMENT OF OTHER
DOMICILE.

Where husband abandoned his domicile in

10-EVIDENCE SUFFICIENT TO

SHOW DOMICILE IN PARTICULAR CITY.

Upon this point the contention on behalf of the Reliable Rag & Metal Company is that the sentence in the contract, "All per ton of 2,000 lbs. basis f. o. b. cars Harrisburg, 1. DOMICILE ~5 Pa.," means that the payment was due as HUSBAND. soon as they had loaded the leather scrap on Where a husband and wife, from the time of the cars at Harrisburg and received the bill their marriage until the wife's death, continof lading therefor; the railroad, as a com-uously lived together as members of one fammon carrier, becoming from that time the ily, the wife's domicile at her death was that agent of the vendee. If there was nothing else than this in the contract, there might be some ground for the defendants' contention;' but the contract also contains this stipulation, "Weights guaranteed at destination," so that it was impossible, until the goods had one state, if at or subsequent to that time he arrived here and been weighed, for the plain- and intent, his domicile of origin in another acquired no other domicile by his combined acts tiffs to have any means of verifying and giv-state must be considered his domicile. ing force to this provision of the contract, so that the payment for the goods became due, 3. DOMICILE and therefore the position taken by the deWhere husband and wife together occupied fendants was a distinct breach of the each of two residences at convenient and apcontract. propriate seasons of the year, evidence held This is the more emphasized when refer- to show that the husband was legally domiciled ence is had to the letter from White to the de-in Philadelphia at the time of death of his wife, fendants of July 19, 1917, in which it was said so that the wife's domicile was there also. that the defendants "contemplated shipping 4. DOMICILE ~4(2) — MOTIVE FOR CHANGING seven or eight carloads or more every month, but preferred not to embody in the contract any guaranty as to quantity." The conThat a husband, who with his wife have octract, therefore, was entirely silent as to the cupied two residences at different seasons of amounts sold and to be shipped under it, but the year, intended to acquire a domicile in ana guaranty was given with regard to the other state, so that in the event of his wife's weight of the leather scraps on their arrival decease he could share more liberally in her at the point of destination. The case is thus estate, does not prevent declaring that state clearly differentiated from that of McGrath his domicile, since motives that actuate the v. Gegner, 77 Md. 331, 26 Atl. 502, 39 Am.apparent intent are immaterial, except as aidSt. Rep. 415, relied upon by the defendants, merely pretended. ing in determining whether it was actual or and the same may be said of numerous other cases involving the same or similar questions decided by this court.

The appellees also seek to uphold the judgment rendered by the court of common pleas

DOMICILE, MATERIAL ONLY IN DETERMINING
WHETHER CHANGE WAS PRETENDED OR REAL.

Appeal from Orphans' Court, Atlantic County.

In the matter of the estate of Annie B. Paullin, deceased. From a decree of the

orphans' court admitting will to probate, ap-and did take up his domicile wherever his peal is taken. Decree advised, denying probate.

Jos. J. Summerill, of Woodbury, Joseph W.

Kenworthy, of Philadelphia, Pa., and J. Boyd

Avis, of Woodbury, for appellant.
William M. Clevenger and C. L. Cole, both
of Atlantic City, for proponent.

LEAMING, Vice Ordinary. I share the view of the learned judge of the orphans' court that at the time of marriage of decedent to Mr. Paullin her domicile was in Atlantic City, and that it does not satisfactorily appear that at any time thereafter it was changed by any change of either conduct or intention on her part. It is difficult to escape the impression that the witnesses on both sides have measurably overworked the convenient word "home" in testimony touching statements made by decedent; but whether or not such impressions can be said to be justified, when it is borne in mind that decedent in fact had a winter residence and also a summer residence, references by her to either of them as her home are obviously without great force, unless made so by the

context of her statements.

[1] I find nothing in the relations or conduct of decedent and her husband which in any way affords an exception to the general rule that a wife's domicile follows that of her husband. From the time of their marriage until the wife's death they continuously lived together as members of one family, and, so far as the evidence discloses, their relations were at all times harmonious. Baldwin v. Flagg, 43 N. J. Law, 495, 498. It necessarily follows that if, at the date of the death of decedent, her husband's domicile was in Philadelphia, her domicile must be declared to have been there also, even though she may have believed, or even intended, to the contrary.

wife's home or domicile was; that place, he found, was Atlantic City.

[3, 4] Where, as here, a husband and wife

have occupied together what the cases usual

ly define as a divided residence, that is, have together occupied each of two residences at convenient and appropriate seasons of the year, and the husband's occupancy of each residence has been entirely consistent with domiciliary intent on his part, the ascertainment of actual intent becomes peculiarly difficult; but I find myself wholly unable to reach the conclusion that the evidence justifies the finding of the trial judge that Mr. Paullin ever adopted Atlantic City as his domicile. As already stated, if he adopted no domicile after abandoning that at Pitman, Philadelphia automatically became his think the evidence impels domicile; but I

the conclusion that he in fact adopted Philadelphia as his domicile. It seems to me that no other conclusion can be reached without almost wholly disregarding his testimony, and also disregarding it in material respects, where it is strongly corroborated by impressive testimony. The fact that he registered at a hotel in Pitman in May, June, and October, 1918, as residing at Atlantic City, is not without force; but the circumstance that on those dates he was in fact residing there renders the significance of the form of the hotel registry less forceful.

In my judgment, the force of the circumstance that Mr. Paullin applied to the assessor of his ward division in Philadelphia on December 27, 1918, for assessment and voting registry, cannot be overcome by any suspicion surrounding that application. On that date the sickness of decedent was not regarded as serious; nor does it appear to have been so regarded on the later date, when Mr. Paullin again applied to the assessor to make sure of his registry. But, even if it should be assumed that his ulterior motive in the matter may have been to acquire a domicile in Philadelphia, to the end that It in the event of his wife's decease he could share more liberally in her estate than he could if domiciled in New Jersey, that assumption would in no way operate to defeat his acquisition of a domicile in accordance with his intent. With an existing residence in Philadelphia in every way consistent with a domiciliary residence there, it was only necessary that his intent to make that residence his domicile should be actual and not pretended. 10 Am. & Eng. Enc. of Law (2d Ed.) 20. In case of divided residence, I think it may be properly said that it is the existence of an actual residence at a particular place, accompanied by a present actual intention of making it a permanent home or a home for time indefinite, that establishes a domicile, and that the motives that actuate

[2] The evidence fully justifies the finding of the trial judge that Mr. Paullin permanently abandoned his domicile at Pitman, N. J., at the time he married decedent. seems reasonably clear, not only that he has at no time entertained any purpose or expectation of returning there, but that he in fact intended the termination of his residence there to be permanent. If at or subsequent to that time he acquired no other domicile by his combined acts and intent, his domicile of origin must be considered his domicile. That was Philadelphia. Valentine v. Valentine, 61 N. J. Eq. 400, 406, 48 Atl. 593, Givernaud v. Variel, 86 N. J. Eq. 80, 86, 97 Atl. 49. But his claim is that at the time of his marriage to decedent he adopted Philadelphia as his domicile, and that Philadelphia has at all times since been his domicile. The learned trial judge found, however, that if he ever took up a domicile after having

(109 A.)

(Supreme Court of New Jersey. Feb. 9, 1920.) all meetings and thereby became mayor by