"It is understood that no foreman, superin- [ tendent's or clerk's salaries or office expense shall be included in the cost of the work. "It is further agreed and understood that Wm. Dall & Co. will make advance, if required, to the extent of fifty per cent. (50%) of the pay rolls for labor. Payments to be made monthly to us for labor and material in accordance with the payments made by the U. S. government on the work. Final payment to be made when the above work is completed and accepted by the government. "Yours very truly, "[Signed] Butcher & Williams, "By David C. Butcher. "Witnesses: [Signed] Warren Griffiss. "Attest: [Signed] J. W. Penton, "Accepted: The William Dall Co., "[Signed] Joseph Dall, Vice President. "November 18, 1915." As the work under this subcontract neared completion in about two years, it was found that, instead of a profit, a loss of $2,679.84 resulted, and on June 18, 1918, after an ineffectual effort to induce the appellant to share this loss, the appellees filed their bill of complaint, in which they alleged, among other things, that the appellant approached the appellees with reference to taking the above-mentioned subcontract; that their estimates differed as to the amount of material which it would take to do and complete the work; that appellees' estimate was larger than that of the appellant; that appellant insisted that its, estimate was correct, and that appellees' was too high; that appellees finally proposed that they would lower their estimate to $68,000, but, fearing a loss at that figure, notwithstanding the insistence of appellant that money could be made at that figure, also proposed that appellant should stand one-half of any loss that was sustained, and should receive one-half of any profits that were made by appellees; that said proposition was accepted by appellant; that said proposition and understanding were oral in the first instance, and were to be put in writing; that thereafter the contract above set out was drawn up; that by a mistake made by the draftsman of said contract it omitted to say anything about the appellant standing one-half of the loss, which omission was not noticed by appellees at the time, nor was the same noticed by them until at or about the time of the completion of the work covered by said contract. The bill further alleges that after the execution of said contract, appellees entered upon the performance thereof, and have completed the same at a loss of between $2,500 and $3,000; that appellant has refused to stand any part of said loss, and that appellees are without adequate remedy at law, and are entitled to have said contract reformed in accordance with said oral agreement, and are entitled to receive from appellant one-half of any loss sustained by them in accordance with the terms of said oral agreement. The prayer of the bill is: (1) That the contract may be reformed so that by the terms thereof appellant shall be liable to appellees for one-half of any loss sustained by them in the job; (2) that after the reformation of said contract appellant may be required to pay appellees such sums of money as may be found to be due them under said contract as reformed; (3) for further relief. The answer filed by appellant on September 19, 1918, admits that it entered into said written contract, but denies the allegations as to mistake of the draftsman and as to the oral agreement to share losses, and avers that it never heard of any such claim until long after the completion of said contract by appellees, and that it was not until the bill of complaint was filed that plaintiffs ever pretended there was any agreement between the parties at any time concerning any loss that might arise or grow out of the transaction. To this answer the general replication was filed on October 1, 1918, testimony was taken, and the court below decreed that the contract be reformed by adding to said contract after the words, "Agreeing to divide with you equally half and half the profits of the job" the following words: "You to repay us half of any losses suffered by us on the job"-and that said addition should have the same force and effect as if originally written in said contract by the parties thereto, and, further, that appellant pay to appellees the sum of $1,339.92 and the costs of suit. From which decree an appeal was duly taken to this court. Before reviewing the testimony it may be well to state the law applicable to this case. It is simple and undisputed. [1] Before a written contract can be reformed by a court of equity on the ground of mistake, it must appear that the mistake was mutual. Boulden v. Wood, 96 Md. 332, 53 Atl. 911; Hopkins v. Neal, 128 Md. at page 256, 97 Atl. 436, and cases therein cited. [2] The mistake must be proved beyond a reasonable doubt-the evidence must be full, explicit, and satisfactory. Second National Bank v. Wrightson, 63 Md. 81; Keedy v. Nally, 63 Md. 311. A mere preponderance of evidence is not sufficient. Philippine Sugar Co. v. Philippine Islands, 247 U. S. 385, 38 Sup. Ct. 513, 62 L. Ed. 1177; United States v. Budd, 144 U. S. 154, 12 Sup. Ct. 575, 36 L. Ed. 384, [3] There must be due diligence in the application for relief, and time runs from the time the mistake was discovered or could have been discovered by due diligence. Wood v. Patterson, 4 Md. Ch. 335; Hewitt's Appeal, 55 Md. 509; Hunt v. Stuart, 53 Md. 225; Keedy v. Nally, 63 Md. 311; Citizen's Ins. Co. v. Conowingo Co., 116 Md. 422, 82 Atl. 372; Stiles v. Willis, 66 Md. 552, 8 Atl. 353. Now as to the proof: [4] There were five persons who took part in the negotiations leading up to the making (107 A.) of the contract, all of whom were witnesses, [timony above referred to, without the corviz.: Warren Griffiss, general manager of respondence, which will be considered later, the Baltimore Brick Company, the concern it would not be clear on which side the prewhich furnished the bricks; David C. Butch- ponderance lay. er and Charles H. Williams who composed the firm of Butcher & Williams, the appellees; H. C. Newnam, superintendent, and Joseph Dall, vice president of the William Dall Company, the appellant. In addition to the facts above set out, the following facts were admitted, or at least not controverted, viz.: (a) That there was a difference of 130,000 between the estimate of appellees and appellant as to the number of bricks that would be required, and the actual number used was 100.000 in excess of appellant's estimate. (b) That Newnam and Joseph Dall insisted there was a profit in the job of $8,000 at their estimate of $68,000. Griffiss testifies that Mr. Newnam was absolutely convinced his figures were all right, and that there was a profit in it at $68,000. (c) That appellees were willing to reduce their original bid because they had an "unusual amount" of scaffolding which they had acquired in connection with a previous job for the Bethlehem Steel Company. On the one hand, it could be plausibly argued that there is an inherent improbability in the contention that appellees, after starting with a bid of $76,000 and then by reason of special circumstances reducing their bid to $72,000, would not only propose to take the contract at $68,000, but also agree to share whatever profits there might be in the job. On the other hand, it could be urged with equal force that the appellant, having made a bid of $240,000 for the entire contract, in which must have been included a satisfactory profit, would hardly have been willing, not only to divide with appellees the profits of nearly one-third of the entire contract, but also, without any power to control the work, to take the risk of sharing losses with a firm whose estimates must have seemed to appellant unsatisfactory, and whose credit was so uncertain that Griffiss was unwilling (according to his testimony) to make a contract with them for the bricks on their sole responsibility. And so if there were nothing more in the case it would be at best a bal (d) That the original draft of the contract was made by Griffiss on the day the agree-ancing of probabilities. ment was reached, and that the contract as executed was an exact copy of this draft, and that it was prepared in the office of appellees and under their direction, and was at all times after its execution in the possession of appellees. But there is something more in the case, namely the correspondence. In their letter to appellees of November 23, 1917, appellant (e) That the first time appellees reported to appellant any loss in connection with the work was in November, 1917, when the work was almost completed, nearly two years after the date of the contract. Now as to the conflict in testimony, we have on one side Griffiss, Butcher, and Williams testifying that the oral agreement was that Butcher and Williams would take the job at $68,000 and become partners in it with the Wm. Dall Company, sharing profits and losses. On the other side we have Newnam and Joseph Dall testifying with equal positiveness that there was nothing said about losses or about partnership, and they are supported by the written memorandum made by Griffiss at the time. It is proper to add that Griffiss' testimony is weakened by conflicting versions given by him of the alleged conversations. In his first recital of what occurred he says the proposition was to share losses; and it was only in response to a somewhat leading question that he added "profits." And it will be noted that both versions given more than two years after the negotiations, are in conflict with the written memorandum made by him at the time the alleged conversations took place. So that, regarding only the admitted or undisputed facts and the conflicting tes107 A.-34 wrote: "Mr. William Dall has explained to us that in your opinion we are obligated under the terms of our contract with you to bear one-half of the loss arising out of the performance of the work. We would like to study this question more carefully, and we will set about to do so at once, all with a view of closing the account," etc. Again on December 10, 1917, appellant wrote appellees: 23, 1917, and to your letter and statement of And on December 15, 1917, appellees wrote appellant: "In response to yours of the 10th inst. beg to advise that we entered into this contract with you by ignoring our figures and accepting yours as a basis of the cost of the job. After accepting your figures we proceeded with the contract, tion find that there is a loss of $3,216.62, which pushed the work energetically and on compleis due to the fact that your quantities were incorrect, the following quantities being in ex cess of the quantities that you gave us to base of its contents, and that they did not even our estimates upon: take the trouble to compare the contract with the memorandum before executing it. It is still more difficult to believe that during all those two years, while losses were being incurred, and especially during the months of November and December, 1917, when the controversy was going on about the proper construction of the contract, they did not know its contents. At any rate if they were careless enough to execute so important a contract without knowing its contents, and so negligent as to fail to discover the alleged mistake during the two years while the losses were being incurred, with the means of discovery at hand, they are not in a good position to ask relief from a court of equity On December 18, 1917, appellant wrote ap- in a matter involving the exercise of a power pellees: "We have your letter of 13th inst., and beg to advise you that there will be a meeting of the board of directors of the company on Dec. 24th, at which time your claim of facts that you believe should alter the construction of the contract will be considered. In the meantime you might tell us definitely who on behalf of the company undertook to guarantee to you quantities involved in the work." which should be used with the greatest caution. A careful examination of the correspondence, especially appellees' letter of December 15th, leads one to the conclusion that the claim of the appellees at that time was based, not on a supposed error in omitting part of the oral agreement from the written contract, but on a misconstruction of the agreement itself. Apparently it was the opinion of appellees that an agreement to On December 20, 1917, appellees wrote ap- share profits made the parties to the contract pellant: partners both as to profits and losses. But it does not by any means follow that appellant so understood it. The letter of December 15th also makes it "Relative to quantities of brick in the job, which to advise that Mr. W. C. Newnam in the presence of Mr. Joseph Dall and others present gave the writer a memorandum of the quanti-clear that appellees regarded the representaties in the job stating that same would complete the work." On December 31, 1917, appellant wrote appellees: "Referring to our letter of December 18th and your answer to same of Dec. 20th, 1917. The board of directors of the company has taken the story of Mr. Joseph Dall and Mr. K. C. Newnam upon your claim that they misrepresented brick quantities to you. In the light of their story we are still advised by our attorney that under the contract this company is not liable for any part of the losses you may have sustained." It will be noted that throughout this correspondence there is not one expression or word to indicate that any of the parties to it knew or had heard of an omission by the draftsman in the memorandum, or by the appellees in preparing the contract, of any part of the oral agreement. It is inconceivable that Griffiss, who reduced the oral agreement to writing, should have turned over to the appellees, who were parties to it, this important paper, involving $68,000, without reading it over, and that appellees on receiving the memorandum were so indifferent to their own interests as to have it copied without careful examination tion of appellant as to quantity of bricks required as a guaranty, and thought appellant should bear the loss. They say distinctly that "We entered into this contract with you by ignoring our figures and accepting yours as a basis of the cost of the job. * ** This shows on the surface that we are not responsi ble for any loss but as we are a party to the thing you could do is to stand 1⁄2 the loss which contract we thought that the very smallest is our interpretation of the contract." What contract? Why, of course the written contract, the only one that has been referred to in the correspondence, and which presumably the writer of the letter had before him when referring to his interpretations of it. In view of the principles governing courts of equity in dealing with cases of this character, as set out in the beginning of this opinion, we are forced to the conclusion that the court below erred in granting the relief prayed for by the bill, and that the decree appealed from must be reversed. Decree reversed, and bill dismissed, with costs to appellant. URNER, J., dissenting. (107 A.) lodge, without receiving authority from the UNIVERSAL LODGE NO. 14, FREE & AC- Grand Master to hold the meeting at such CEPTED MASONS, OF CITY OF ANNAP-place; and also with "passing an act to purOLIS et al. v. VALENTINE. (No. 14.) (Court of Appeals of Maryland. June 24, 1919.) 10(6)-FRA chase a piece of property at the cost of $3,500 and to make a deposit payment of $1,000, with the right to give a mortgage for the remaining $2,500." The property so referred to was to be, when purchased, a home for said 1. BENEFICIAL ASSOCIATIONS A member of a fraternal organization who 10(3)—ExPULSION OF MEMBERS-NOTICE OF CHARGES. Where a member of a fraternal order who had appealed to the Grand Lodge from an order suspending him was expelled by that body on grounds additional to those on which the suspension was based, which had not been formally presented as charges as required by the rules, and after a hearing of which the member was given no notice, though he learned of it the morning of the hearing, he was not given a fair hearing, and the expulsion will be set aside. Appeal from Circuit Court, Anne Arundel County, in Equity; Wm. H. Thomas, Judge. Bill by Henry Valentine against Universal Lodge No. 14, Free & Accepted Masons, of the City of Annapolis, a body corporate, and others. From a decree for complainant, defendants appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, PATTISON, URNER, and STOCKBRIDGE, JJ. Section 6 of article 1 of the constitution of the Grand Lodge, subtitle "Subordinate Lodges," provides: "Nor shall any lodge hold meetings, unless authorized by the Grand Master, in any place other than the one designated in its charter, under the penalty of a forfeiture thereof." Section 2 of article 1 of the same subtitle provides: "It shall not be competent for a lodge to try its master. Any five members of the lodge or the District Deputy Grand Master may, however, impeach him before the Grand Master, who shall order an investigation of the charges, and if, in his opinion, they are well founded and of a character to justify the proceeding, he may suspend the delinquent and summon him to appear at the ensuing meeting of the Grand, Lodge, to show cause why he should not be dealt with according to the regulations and usages in such cases established." Upon the receipt of the letter containing the charges mentioned, Joseph P. Evans, Grand Master, appointed a commission, consisting of five past masters, to investigate the charges preferred against Valentine, and on January 14, 1914, the Grand Secretary of the said lodge wrote Valentine, telling him that charges had been preferred against him to the Grand Master "for a violation of the law and Masonic usages in holding a com W. Ashbie Hawkins, of Baltimore (Hawk-munication outside of the regular place of ins & McMechen, of Baltimore, on the brief), meeting without a dispensation," and further for appellants. telling him that the commission would notify James M. Munroe, of Annapolis, for appel-him as to the time and place of investigation. lee. This the commission did by letter of January 22, 1914, in which he was told that the mem of Annapolis on February 2, 1914, to hear testimony in reference to the charges preferred against him. PATTISON, J. The appellee, Henry Val-bers of the commission would sit in the city entine, was in January, 1914, and for some time prior thereto, master of Universal Lodge No. 14, Free & Accepted Masons, of the city of Annapolis, Anne Arundel county, Md., one of the subordinate lodges of the Grand Lodge of Free & Accepted Masons of Maryland. To this letter Valentine replied by letter dated January 25th, in which he told them that he was employed as steward at the NaOn the 13th day of January, 1914, certain val Academy officers' mess; that on the date members of said subordinate lodge, in a let- mentioned for the hearing he had to serve a ter addressed to Joseph P. Evans, master of supper, where his presence would be requir the Grand Lodge, one of the appellants, pre-ed from 8 to 11:30 p. m.; and that it would ferred charges against the appellee as master be impossible for him to attend the meeting of said subordinate lodge. The charges were on the day named, but stated that: "Any that Henry Valentine had called a meeting of other day will be all right for me. Please the subordinate lodge at Isaac & Rebecca arrange and advise me." Hall, not the place designated in its charter for holding its meetings, and had at such meeting transacted business pertaining to the The secretary of the commission wrote Valentine on January 26th, acknowledging the receipt of his letter and said to him: "I shall For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes at once take the matter up with the commission and notify you at the very earliest convenience of whatever day they may set." But in a postscript thereto, dated January 29th, the secretary stated that: "The commission has instructed me to say to you that under no consideration can they change their date from February 2d, and shall expect you and your witnesses present." "That special committees may be appointed upon any item of business and may consist of as many members as the lodge, in its discretion, may think proper. All committees shall report at the next stated meeting, subsequent to their appointment, and in writing, unless otherwise ordered by the lodge. All committees shall be appointed by the master. Members who are appointed to serve upon committees shall feel bound in honor to give patient and On January 30th, Valentine wrote Evans diligent attention to the business of their aptelling him of the engagement which prevent-pointment, and report their conclusions to the ed his attending the meeting of the commis- lodge without fear or favor." sion on February 2d and of the letter received from the commission saying they would not change their date of sitting and asked him "to please have them, the commission, meet on Tuesday, February 3d, or February 6th. Either of these days I can and will be glad to meet them. Hoping this meets with your approval." We have stated section 22, article 7, in full, in order that it may be seen of what specific offenses Valentine was found guilty and for which he was subsequently suspended. Master, wrote Henry Valentine stating that On February 9th, Joseph P. Evans, Grand he would visit his lodge on Tuesday night, On the following day, January 31st, Valen- February 17th, and ordered him to have his tine again wrote the secretary of the commis- secretary notify all members of said suborsion telling him that it was impossible for dinate lodge to be present and also to notify the District Deputy Grand Master of his him to be present on February 2d, but saying: "I can with pleasure be with you Tuesday, coming, and that he be present at the meetFebruary 3d, or February 6th. I have refering. Valentine attended the meeting on Febred the matter to the Grand Master. Please ruary 17th, and his statement of what occurred is as follows: .confer with him." On February 1st, Evans wrote Valentine stating in substance that he very much re gretted that he could not have the commission defer their meeting as suggested by him (Valentine) but as the matter was at such time in the hands of the commission, and as they had fixed February 2d, he could not in terfere in the matter. The meeting of the commission was held on the evening of February 2d at Annapolis, but Valentine was unable to attend for the reasons previously communicated to the commission. After its meeting at Annapolis on the evening named, the commission made its report to the Grand Master, in which it is stated: "That after a very careful review of all the evidence, we find that Brother Henry Valentine, W. M. Universal Lodge No. 14, F. & A. M., of Annapolis, Md., is guilty of a very grave offense by not complying with the second common laws of Masonry by not being present at the setting of the commission when summoned to do so, also treating the commission with contempt by not sending them a written statement at their place of setting on February 2d, stating just why he could not be present. Also Brother Henry Valentine we find has committed an offense in the violation of article 1, section 6, on page 65; also a violation of article 7, section 22, page 83, in the Masonic Digest." "After the regular routine of business had been completed, the Grand Master, Joseph Evans, was introduced by the worshipful master to the lodge and I gave him the chair. * * After taking the chair he * said, 'Brother Valentine come to the altar.' I did so. He said, 'Charges have been preferred against you by members of this lodge and a commission have been appointed to investigate and the charges have been sustained; you are suspended; go out of this lodge.' * He then said to the junior warden, 'Call off this lodge from labor to refreshment,' and the junior deacon, 'Open that door and let Henry Valentine go out of this hall.' * Evans, in speaking of what occurred at the meeting of February 17th, said: * "On my arrival about 8 o'clock, found the lodge opened and in session. * * I repaired to the master's station, as is the custom; asked him for his jewel of office. He turned over the same to me, as is the custom. I then asked for the warrant of the lodge, which he refused to give, but after some explanation and a statement as to what I had learned his purpose and motives was, I taken it out of his hand. He very reluctantly turned it loose. It was in a case. I then * * * explained to him that the commission that had been appointed by me to investigate the charges preferred by the members of his lodge had made their report to me and their report sustained the charges, and that I was here in the capacity as Grand Master to perform my duty as is the custom, the rules and regulations of the order, The first of these sections (section 6, article 1), as we have stated, contains the prohibi-which, under the circumstances, compel me to tion against holding meetings in any place other than the one designated in the charter of the lodge without authority from the Grand Master. til the meeting of the Grand Lodge in Hagers suspend him as master of Universal Lodge untown, August coming, at its regular sitting, at which time his case would be reported by me to the Grand Lodge. That he was also ordered The other (section 22, article 7) provides: to be present, and if any irregularities or oth |