(105 Md. 135)

RIGGS et al. v. TURNBULL. (Court of Appeals of Maryland. Feb. 28, 1907.) 1. BROKERS - COMPENSATION FAILURE TO COMPLETE CONTRACT DEFAULT OF PUBCHASER.

A sale of property negotiated by a broker for $38,000 provided for a payment in cash of $500, a payment of $4.500 on a later date when the deed was to be delivered, and a mortgage for the remainder given, together with a bond for improvements to be placed on the property by the purchaser. On the date when the deed was to be given, the purchaser was unable to comply with the contract, but paid $3,000, and further time was granted. A few months later, the purchaser, still being unable to comply with the contract, gave his note to the vendor for $2.000. and the contract was canceled. Held, that the broker was not entitled to his commission.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 8, Brokers, § 97.]

2. TRIAL-MOTION TO TAKE CASE FROM Jury -WAIVER.

A request by defendants at the close of plaintiff's case to withdraw the case from the jury is waived by introducing evidence after the request is denied.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 982, 983.]

Appeal from Court of Common Pleas; John J. Dobler, Judge.

Action by Edwin L. Turnbull against Clinton L. Riggs and Mary C. Riggs. Judgment for plaintiff and defendants appeal. Reversed.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, and BURKE, JJ.

Leon E. Greenbaum and George R. Galther, for appellants. John H. Morgan and John Phelps, for appellee.

PEARCE, J. This action was brought by Edwin L. Turnbull for the recovery of commissions as a broker for the sale of a house and lot, No. 903 North Charles street, the property of Clinton L Riggs,

Some time in March, 1905, the plaintiff was employed by William B. Ehlen to purchase for him the adjoining property, No. 901 North Charles street, to be converted into an apartment house, and while this ne gotiation was pending, the plaintiff urged Ehlen to purchase the defendants' adjoining property, and convert the two into one large apartment house. Ehlen authorized plaintiff to negotiate for him for the purchase of this property also, but upon the distinct understanding that he would not pay any commissions upon that purchase, though he had agreed to pay commissions upon the purchase of No. 901, because the owner refused to pay them. After three interviews with Riggs, plaintiff negotiated a sale to Ehlen for $38,000, Riggs agreeing to pay the usual commissions of 21⁄2 per cent. on the purchase price, the commissions to be paid when Riggs received his money, and at that time plaintiff informed Riggs that the two properties were to be used as an apartment house, but did not disclose to him that he was acting for

Ehlen in the purchase of the property. On the date of the last interview, March 29, 1905, a written agreement was entered into between Riggs and his wife, and Ehlen for the purchase of the latter of the property, No. 903 North Charles street, for the sum of $38,000, of which $500 had been paid before the signing of the agreement, and the balance was to be paid as follows: "$4,500 on the 1st of June, 1905, at which time a deed for the property shall be executed, and a mortgage for the unpaid price shall be given, with a satisfactory bond for improvements to be erected. Said mortgage to bear 5 per cent. interest, and to be payable as follows: $5,000 in 6 months from date of mortgage; $3,000 in 12 months, balance payable within 5 years at option of vendee." The plaintiff explained that the bond for improvements mentioned in this agreement was to protect Riggs in event that the existing improvements were torn down to make way for the new, and to secure him until the new improvements were erected, and Riggs testified that, when Ehlen was disclosed as the purchaser, he questioned his financial responsibility, and at the suggestion of Riggs' brother, who was his counsel, it was stipulated in the agreement that a satisfactory bond should be given for the erection of the apartment house, which was to cover the property, so that he might be protected. On June 1, 1905, Riggs had moved out of the house and was ready to deliver it to Ehlen, but Ehlen told him he was unable to carry out the terms of the contract, but he then paid $3,000, and asked indulgence until he could get his clients together, and put the deal through. This indulgence was given, and Riggs testified that he repeatedly urged Ehlen to comply with the contract, and did everything in his power to aid him, personally offering to take $50,000 of the bonds to carry out the scheme of the apartment house. This condition of affairs continued until the month of October. In the meantime, Riggs had placed the matter in the hands of his brother Alfred R. Riggs, as his attorney, who testified that he told Ehlen he was instructed to enforce the contract, and Ehlen assured him he had not a dollar in the world; that the men who had agreed to go in the deal with him had all backed out, and if he was sued, it would simply put him out of business, and Riggs would get nothing. The result of this was that on October 11, 1905, Ehlen gave his note for $2,000, payable four months after date, and the contract was canceled by Alfred R. Riggs, attorney for Clinton L. Riggs by indorsement thereon. No part of this note has ever been paid. The adjoining property, No. 901 North Charles street, was not converted into an apartment house at all, and is now occupied as a furniture store, and Mr. Riggs has since endeavored to sell his property at $5,000 less than Ehlen contracted to pay, but has been unable to find a purchaser at any price because the ad

joining property is in the hands of real estate speculators. The bond for improvements stipulated for in the contract was never given, and it is clear from Ehlen's staement to Alfred R. Riggs that he was utterly unable to comply with that stipulation.

In 23 Amer. & Eng. Enc. of Law, 917, the general rule is said to be that "where the purchaser presented by the broker is accepted by his employer, and they enter into a valid, binding, and enforceable contract of sale, the broker is entitled to his commissions, whether or not the contract is actually car ried into effect, and the sale made," and substantially the same rule is announced in Mechem on Agency, § 966, and in Clark & Skyles on Agency, § 773. An examination of the cases shows that this rule prevails in most of the states of this country, where the question has been clearly raised and decided. The ground upon which most of these cases proceed may be illustrated by the case of Ormsby v. Graham, 123 Iowa, 202, 98 N. W. 724, in which a consummated sale is defined as "one consummated by such a contract as will be enforced by the courts if enforcement be demanded," and by the case of Brennan v. Perry, 7 Phila. (Pa.) 243, where it was held that: "In order to entitle a broker to commissions, there must be an actual sale, vesting the right to the purchase money in the vendor, and transferring the right of property to the purchaser." But this is not the rule prevailing in England, or in this state.

In Keener v. Harrod, 2 Md. 70, 56 Am. Dec. 706, the court said: "The legal import of an agreement to procure a purchaser, binds the party to name a person who ultimately buys the property," as was held in Murray v. Currie, 32 Eng. Com. Law, 641, cited by the court in support of its language. In Kimberly v. Henderson and Lupton, 29 Md. 515, the court said: "To be entitled to their commissions as brokers they should have completed the sale; that is, they should have found a purchaser in a situation, and ready and willing to complete the purchase according to the terms agreed upon. The undertaking to procure a purchaser requires of the party so undertaking, to produce a party capable and who ultimately becomes the purchaser. These propositions are settled in Keener v. Harrod and Brooke, 2 Md. 63, 56 Am. Dec. 706, and McGavock v. Woodlief, 20 How. (U. S.) 221, 15 L. Ed. 884."

In Kimberly v. Henderson and Lupton, supra, there was a written agreement for sale with a stipulation that in case either party should fail to comply with the contract, a forfeit of $1,000 should be paid by the party in default to the other party. The vendee was unable to comply, being disappointed in the receipt of funds which he expected to receive, and he paid the forfeit accordingly. In a suit for brokers' commissions, the court below granted a prayer of the plaintiff that if the agreement for the sale of the property

offered in evidence was made through the plaintiffs as brokers of defendant, the plaintiffs were entitled to their commissions as brokers, "for their services in effecting the negotiations which terminated in said agreement, as fully as if a deed had been executed for said property, and the purchase money had been paid," and refused a prayer of defendant that plaintiffs were not entitled to recover, "even if the jury found that the parties entered into the contract offered in evidence, if the jury further found that the contract of sale was put an end to by the payment by the purchaser of the forfeit of $1,000." On appeal, this court reversed a judgment in favor of the plaintiffs, saying that the prayer of the plaintiffs should have been refused, and that of the defendant should have been granted, and it will be seen that this prayer of the plaintiffs presented the theory that the broker is entitled where the parties enter into a contract of sale, whether the contract is actually carried into effect or not, while that of the defendant made the right of recovery to depend upon the carrying of the contract into execution. In delivering the opinion in that case, Judge Alvey said: "A party was produced, it is true, and a contract entered into through the agency of the appellees, but of such a character that the party contracting, by the exercise of an option given him, relieved himself of the obligation to complete the purchase, and did not in fact become the purchaser." The appellee's counsel in the case before us sought to avoid the effect of this decision, because of the option given the purchaser to relieve himself of his obligation by payment of the forfeit. But this cannot avail the plaintiff. The distinct ground upon which the plaintiff's right of recovery was denied in the case referred to, was that he "did not in fact become the purchaser," and it is immaterial whether this was because he was literally unable to comply with the contract, or because the terms of the contract negotiated by the broker permitted him to substitute the payment of a forfeit for performance. The forfeit was provided for the exclusive benefit and protection of the vendor, and not for that of the broker, whose right of recovery depends absolutely upon the carrying of the contract into execution, except in the single case where the vendor by his own fault prevents its execution. The commissions are recoverable for a sale made and executed, not for the receipt of a forfeit provided to indemnify the vendor for nonperformance by the vendee.

In McGavock v. Woodlief, 20 How. (U. S.) 229, 15 L. Ed. 884, cited in Kimberly v. Henderson, 29 Md. 515, the Supreme Court said: "The broker must complete the sale; that is, he must find a purchaser in a situation, and ready and willing to complete the purchase on the terms agreed on, before he is entitled to his commissions. Then he will be entitled

to them, though the vendor refuse to go on and perfect the sale." Mr. Benjamin argued that case for the defendant, the plaintiff in error, and one of his propositions, apparently approved by the court, was that it was necessary for the broker to show "that the sale was actually made, and the price received, or at all events, that it was his employer's own fault that the sale was not effected." The view thus expressed by Mr. Benjamin was distinctly announced in Chapman v. Winson, 91 Law Times Rep. (N. S.) 17. In that case, the broker introduced a person who signed a formal contract for the purchase of a hotel for £2,000, of which £200 was paid at once, and the balance was to be paid upon completion of the purchase. The purchaser was unable to carry out this contract, and communicated this fact to the broker, who informed the vendor, but also claimed full commissions. The vendor subsequently agreed with the purchaser that the vendor should retain the £200, and that the purchaser should be released from the contract, and the broker sued for his commissions and was denied the right to recover. The Master of the Rolls said: "It seems to me the prima facie meaning of this contract is that the condition precedent is to be that the purchase is to be completed, in the legal sense, by payment of the purchase money.

* In my opinion,

she would become the purchaser when the purchase was completed by payment of the purchase money." In complete accord with the earlier Maryland cases, and with the above recent English case, is the case of Richards v. Jackson, 31 Md. 250, 1 Am. Rep. 49, where there was a written agreement for the purchase, and the purchaser refused to comply because he was advised the title to the property was defective, though in a subsequent proceeding it was pronounced by the court to be a good title. The broker then sued for his commissions and recovered judgment, which this court reversed, saying: "It is not sufficient that he [the purchaser] should enter into an agreement to purchase, but he must actually purchase by complying with the terms agreed on, unless his failure to do so is occasioned by the fault of the vendor." This case, and the case of Kimberly v. Henderson in 29 Md. 515, supra, were approved in Melvin v. Aldridge, 81 Md. 658, 32 Atl. 389, in which, in an equity case, it was held that, where purchase money in an executed sale was payable in installments, the broker was only entitled to commissions on the installments as paid from time to time, because, in the language of the court, "until they are actually paid, the terms of sale have not been complied with."

In the very recent case of Coates v. Locust Point Company, 102 Md. 291, 62 Atl. 625, there was an agreement between the parties that if the lessee of property who had been procured by the real estate broker exercised an option given him in the lease to buy the same, the broker should be entitled to

commissions on the sale also. The option was exercised, but a part only of the purchase money was paid when the broker sued for his commissions. It did not appear from the record in that case just how much of the purchase money had then been paid, or whether the circumstances were such as to require the broker to wait until the purchase money was paid, but it was very strongly intimated that there could be no recovery for the amount unpaid.

In the present case, as we have already said, an important term in the contract of sale, was that a satisfactory bond for improvements to be erected should be given by the purchaser, which improvements contemplated the tearing down of the dwelling then on the premises. There was not only not a particle of evidence to show that such a bond was ever given or tendered, but the undisputed evidence shows that the purchaser stated to the defendants' attorney that "he had not a dollar in the world; that all the money he had put into the transaction was borrowed money, and he was unable to borrow any more; that the men who had agreed to go into the deal with him had all backed out, and he was unable to do anything." The giving of this bond was the only thing, which, under the scheme of improvement, would afford any rational protection to Riggs, and without such bond there could be no pretense of compliance with the terms of the contract. If any authority were needed to show how vital to this contract is that provision, it is found in the case of Inge v. McCreery, 60 N. Y. App. Div. 557, 69 N. Y. Supp. 1052. In that case, one of the terms required by the defendant was the production of a bond of a surety company for $25,000, conditioned for the completion of a building on the premises. The court said: "The undertaking [of the broker] was not to get a purchaser to take the property and pay the purchase money. It was more than that. He was to get some one to erect a large building, and the defendant was to make a builders' loan for that purpose, when protected by the stipulated bond."

In

In harmony with this case it was held in Hale v. Kumler, 85 Fed. 161, 29 C. C. A. 67, that "where the [any] condition upon which a broker is to be entitled to his commissions has not been fulfilled, but performance has not been prevented by the wrongful conduct of the principal, the latter is entitled, in an action by the broker for compensation, to rely upon the fact of nonperformance." the light of these principles, sound and satisfactory in themselves, and illustrated by the cases which we have cited from the courts of this state, the federal court and the English courts, there was error in the rejection of the defendants' first prayer offered at the close of the defendants' testimony, which is as follows: "The defendants pray the court to instruct the jury that there is no legally sufficient evidence that William B. Ehlen, who signed the agreement to purchase the

property referred to in the evidence, was ready and willing to complete the purchase according to the terms agreed upon, and, as a matter of fact, did complete the purchase, and that by the undisputed evidence in this case, the defendants were ready and willing to comply with the terms of agreement of sale, and that their verdict must be for the defendants." In view of this conclusion, it is unnecessary for us to consider any of the other prayers in the case, those offered by the defendants at the close of the plaintiff's case seeking to withdraw the case from the jury, being waived by proceeding to offer their own testimony, after the rejection of these prayers, and, as there can be no recovery in this state of the case, no new trial will be awarded.

Judgment reversed, with costs above and below.

(105 Md. 297)

STEWART v. STEWART. (Court of Appeals of Maryland. March 1, 1907.)

1. DIVORCE - GROUNDS SIONS.

- STATUTORY

PROVIUnder divorce laws (Code Pub. Gen. Laws, art. 16, § 37), providing that a divorce a mensa et thoro shall be granted only for cruelty of treatment, excessively vicious conduct, or abandonment and desertion, a bill praying for divorce a mensa et thoro on the ground of adultery alone is insufficient.

2. SAME-PROCEEDINGS-PLEADINGS-ANSWER. Where a bill for divorce does not contain such allegations as would warrant the decree sought, the proper mode of taking advantage of such defect is by demurrer, but, where the objection goes to the whole bill except the prayer for alimony and the defendant would by his demurrer admit the charge of adultery in the bill, the defense may be properly made by an

swer.

3. SAME INJUNCTION-SALE OF PROPERTY.

An allegation in an action for divorce that defendant has declared his intention to dispose of his dwelling and place of business, followed by the expression of plaintiff's belief that he would do so to her injury, was not sufficient to warrant the granting of her prayer for an injunction restraining him from disposing of his property.

[Ed. Note. For cases in point, see Cent. Dig. vol. 17, Divorce, § 600.]

Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge.

Bill by Lottie J. Stewart against Randall Stewart. From a decree for plaintiff, defendant appeals. Reversed and remanded.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. C. Dodd McFarland, for appellant. W. Purnell Hall, for appellee.

PEARCE, J. The bill in this case was filed by the appellee against the appellant for divorce a mensa et thoro; the only ground alleged being adultery. The bill, after alleging that the defendant, had been guilty of the crime of adultery with a woman specifically named, and others unknown to the plaintiff, within six months preceding

the filing of the bill, further alleged that the defendant is possessed of certain leasehold property on Druid Hill avenue, in Baltimore City, and that he conducted a restaurant and saloon on Lee street, in Baltimore, which business yielded him over $100 a week; that she had not lived or cohabited with the defendant since September 7, 1906, when she discovered his adulteries, though she is destitute of means of support, or of prosecuting her suit for divorce; and that the defendant had informed her "that he intended to dispose of his dwelling and business place, and that she believes he will do so to the great injury of your oratrix in the premises, and that only by the writ of injunction can your oratrix's marital rights be fully protected until the final determination of this suit." The prayer of the bill was for alimony, both pendente lite and permanent, and for a reasonable sum of money for employment of counsel and expenses of her suit; also, for an injunction restraining the defendant "from disposing of or assigning said leasehold property or his place of business, or the contents thereof, until the final disposition of the suit." An injunction was issued immediately upon the filing of the bill, in the precise language of the prayer therefor. In a few days thereafter the defendant filed an answer, denying that he had been guilty of any act of adultery, and alleging that the plaintiff abandoned him on September 7, 1906; that they had resided on Druid Hill avenue, though he conducted his business on Lee street; and that about the date last mentioned he proposed for reasons of economy to rent out his dwelling and remove to the building in which he conducted his saloon and restaurant, and, to gain the plaintiff's consent, offered to give her the rent of the dwelling, about $25 a month, and allow her all the profit she could make by managing the restaurant, but that she declined to live with him at his place of business. He alleged that he purchased the leasehold property mentioned for $1,500, paying $300 of his own money, and giving a building association mortgage for $1,200, on which he paid $7.97 weekly; that he had only been in business on Lee street about four months, and that the expenses were equal the receipts, and that he had no other property, but that the plaintiff had furniture worth $400 or $500. He also denied the allegations of that paragraph of the bill in which plaintiff stated he had informed her he intended to dispose of his dwelling and place of business, and that she believed he would do so, to her injury, and further denied that she was entitled to a divorce a mensa et thoro or to any relief whatever under the allegations of her bill, because she does not charge either cruelty of treatment, excessively vicious conduct, or abandonment and desertion; these being the only three causes for which a divorce a mensa et thoro may be decreed as he alleges, under section 37 of article 16,

Code Pub. Gen. Laws, which is the only statute in this state relating to divorces a mensa et thoro, and the bill praying specifically for such decree.

On the same day this answer was filed the defendant moved for the dissolution of the injunction. Upon the filing of the bill on September 8, 1906, an order was passed the same day requiring the defendant to pay the plaintiff $25 as counsel fee for her solicitor, and $7.50 per week as alimony pendente lite, unless cause to the contrary was shown on or before September 25, 1906, provided a copy of that order was served on defendant on or before September 13, 1906, and service was made September 8, 1906. On October 12, 1906, the motion to dissolve was refused, and the order of court as to alimony and council fee was made absolute, and appeal was entered from that order same day. There is nothing in the record to show whether any testimony was taken, nor does it appear whether any argument or hearing was had at or before the passage of the order appealed from. The principal question in the case, and the one which goes to its root, is whether the court has power to decree a divorce a mensa et thoro, when that is the specific decree sought, and the only ground alleged is adultery.

Prior to Act 1841, c. 262, all divorces emanated from the Legislature. By that act jurisdiction "of all applications for divorce" was given to the Chancellor or to the county courts of the state, and section 21 of article 3 of the Constitution of 1851 forbid the granting of any divorce by the General Assembly, and this has ever since continued to be the fundamental law in this state. The transfer of jurisdiction from the General Assembly to the courts thus became exclusive, but full discretion was not conferred upon the courts. From a period before the Revolution, however, the Court of Chancery in this state had full jurisdiction in cases of alimony, though no divorce had been decreed or was asked for, and though the case made by the bill and proof would not, according to the ecclesiastical courts in England, entitle her to a divorce a mensa et thoro. Hewitt v. Hewitt, 1 Bland, 101. Jamison v. Jamison, 4 Md. Ch. 289. In 2 Nelson on Divorce & Separation, p. 979, the author says: "The power to grant a decree from bed and board must be conferred by a statute stating the causes for which it may be granted. If the power is not so conferred, the court will not grant a separation for the common-law causes of divorce." In 14 Cyc. p. 74, it is said: "In some jurisdictions either kind of divorce may be granted in the discretion of the court." We have examined the cases referred to in this passage, and find that they all rest upon construction of the statute. Thus, in Collier v. Collier, 16 N. C. 352, the court said: "The Legislature had transferred that jurisdiction, with full discretion, to the courts." And in Sullivan v. Sullivan, 112 Mich. 674,

66 A.-2

71 N. W. 487, where the complainant asked for a decree of separation, and not for one a vinculo, and the court decreed the latter, justifying its action by the statute, one section of which provided for a divorce from bed and board on the ground of extreme cruelty, and for certain other causes, and the next section provided that a divorce from the bond of matrimony might be decreed for any cause mentioned in the preceding section, whenever in the opinion of the court the circumstances of the case should be such as made it discreet and proper to do so. It is not believed any case is referred to by the text-writers warranting the exercise of discretion by the court in granting a decree for a cause not stated in the statute, unless that discretion is conferred by the statute either in express terms or by clear implication.

Apart from the technical rules of construction generally which lead to this conclusion, and the apparent absence of authority to sustain the contention of the appellee, an examination of our own statute seems to strengthen this conclusion. Section 36 of article 16 relates exclusively to the granting of decrees for divorce a vinculo, and enumerates the grounds upon which the statutory jurisdiction conferred may be exercised, but intimates no authority to grant such decree for any cause not enumerated in that section. Section 37 of article 16 relates exclusively to the granting of decrees a mensa et thoro, and enumerates the grounds upon which that jurisdiction (which is also purely statutory) may be exercised, none of which causes would warrant a decree of divorce a vinculo; but it then proceeds to provide that "the court may decree a divorce a mensa et thoro in cases where a divorce a vinculo is prayed, if the causes proved be sufficient to entitle the party to the same"; that is to say, if the causes or some of them proved, though not necessarily alleged, are such as warrant a decree a mensa et thoro, though the causes alleged as ground for a decree a vinculo, may not be established by proof. A reference to Act 1841, c. 262, shows that as originally enacted the clause last quoted above was followed by the words, "under the provisions of this act"; these words being omitted when that act was originally codified. This provision only dispenses with formal allegation in a bill for a decree a vinculo, of ground for a divorce that would warrant a decree a mensa et thoro, but permits the offer of proof of the latter ground, upon failure of proof of the former, and bases the decree upon the actual proof, thus confining the exercise of jurisdiction to the special statutory ground named in the statute.

In Schwab v. Schwab, 93 Md. 385, 49 Atl. 331, 52 L. R. A. 414, Judge Schmucker, speaking for the court, said: "An action for a divorce a vinculo is in every respect different from that for a divorce a mensa et thoro. They are both statutory proceedings. and they proceed upon different sections of the