statute, are founded upon a different state of facts and aim at entirely different results." And in Robertson v. Robertson, 9 Daly (N. Y.) 53, in a similar case, Judge Van Brunt said: "The action for absolute divorce is entirely different in every respect from an action for a separation. They have no relation one to the other, and proceed under entirely different divisions of the statute law." The question here is not, as stated by the appellee, whether the party complaining can be required to take more than is desired or asked for, but whether the court has power to grant any other relief upon the single ground stated than the one provided by the statute. Whatever views we might entertain of the wisdom of the law in discriminating and fixing the different grounds upon which alone these respective forms of divorce may be granted, our only power is to construe the law as it stands upon the statute book, and we are not able to construe this law otherwise than we have done. There is much diversity of opinion as to the desirability of decrees of separation from the standpoint of public policy, and that subject is well discussed in Nelson on Divorce & Separation, pp. 978, 979. In Barclay v. Barclay, 98 Md. 374, 56 Atl. 804, we have expressed our approval of the opinion of the Master of the Rolls in Besant v. Wood, L. R. 12, Ch. Div. 605: "That it would be better in many cases for married people to avoid the expense and scandal of suits for divorce by settling their differences quietly by the aid of friends out of court, though the consequence might be that they would live separately." But the appellee contended that, if the bill did not contain such allegations as warranted the decree sought, the proper remedy was to demur to the bill, citing in support of this contention Miller v. Balto. County Marble Co., 52 Md. 646, in which the court said: "Whenever the ground of objection or defense is apparent on the face of the bill itself, either from matter contained in it or from defect in its frame, it is well settled that the proper mode of taking advantage of such objection is by demurrer." In this case the objection goes to the whole bill, or at least to all except the prayer for alimony, and if the defendant is not guilty of adultery, as he has sworn he is not, he would by demurrer have admitted the truth of that charge in the bill. He ought not to be driven to that position, and we think in such a case as this the defense may be properly made by answer. Ordinarily the defense of limitations in equity must be relied on by plea or answer. Allender v. Trinity Church, 3 Gill, 166. But in Belt v. Bowie, 65 Md. 355, 4 Atl. 295, it was held that it might be availed of by demurrer, and again in Biays v. Roberts, 68 Md. 512, 13 Atl. 366.

It is a settled law in this state that a husband may alienate his property at will, even though in the exercise of this right he strips himself of all means of supporting or main

taining his wife, provided he does so bona fide, and with no design of defrauding her of her just claims upon him and his estate. Ricketts v. Ricketts, 4 Gill, 105; Feigley v. Feigley, 7 Md. 561, 61 Am. Dec. 375. There is no charge in this bill of any intent to defraud her of her marital rights. The only charge is that he had declared his purpose to dispose of his dwelling and place of business followed by the expression of her belief that he would do so to her injury. We do not think this allegation warranted an injunction, and the motion to dissolve should have been allowed. Moreover, the injunction is only ancillary to the chief purpose of the suit, and, if the case made by the bill did not entitle her to a decree, she could not be entitled to an injunction. Gelston. v. Sigmund, 27 Md. 334. In Rose v. Rose, 11 Paige (N. Y.) 167, an injunction which prohibited the husband not only from parting with his property, but from carrying on his ordinary business, was declared toa broad, and properly, as we think. This objection is especially apparent in this case, since the order which continued the injunction also made absolute the order for weekly alimony of $7.50, and the only evidence in the case of his ability to pay that sum is the alleged weekly profits for carrying on his ordinary business. It follows from what we have said that the order appealed from must be reversed and the injunction be dissolved, but, as the plaintiff would have a right to proceed for permanent alimony, without asking for any decree of divorce, and may desire to apply for leave to amend her bill accordingly, the case will be remanded to enable her to do so if she desires.

Decree reversed, injunction dissolved, and cause remanded for such further proceeding as may be in conformity with this opinion; costs to be paid by appellant.

(105 Md. 171)

SLOAN v. CLARKSON. (Court of Appeals of Maryland. Feb. 28, 1907.) CORPORATIONS STOCKHOLDER'S ACTION RIGHT TO COMPEL ACCOUNTING BY AGENT. Where the petition in an action by a resident minority stockholder of a foreign corporation doing business in the state against the corporation and a resident agent thereof, alleged that the corporation refused to require the agent to account to it respecting sales made by him and the business conducted by him as agent, and that such refusal was due to improper and fraudulent motives and was based on the fact that the agent, the president, the secretary, the treasurer, director and majority stockholder were one and the same person, and that the action of defendants and of the majority of the directors of the company was fraudulent and in violation of complainant's legal rights, a court of equity had jurisdiction to require the agent to account.

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

Bill by Frank S. Clarkson against F. Eugene Sloan, trading as Frank B. Sloan & Co., and another. From an order overruling a

demurrer to the complaint, defendant, Sloan, appeals. Affirmed.

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

Frank Gosnell and George W. Taylor, for appellant. Aubrey Pearre and Randolph Barton, Jr., for appellee.

BRISCOE, J. This is an appeal from an order of the circuit court of Baltimore city passed on the 13th day of November, 1906, overruling a demurrer of F. Eugene Sloan, trading as Frank B. Sloan & Co., one of the defendants, to the plaintiff's amended bill of complaint. The original bill was filed by the appellee against the appellant and the Norris Sash Pulley Company, a West Virginia corporation transacting business in this state.

The court below sustained the demurrer to the original bill, with leave to the plaintiff to amend, and also held that the plea of the Norris Sash Pulley Company "be, and it is hereby, allowed to stand as the answer of the company." Thereupon the plaintiff amended the bill of complaint, and a demurrer and plea were filed to the amended bill. The demurrer being overruled, the defendant Frank B. Sloan & Co. has appealed.

The bill avers that the plaintiff and the defendant F. Eugene Sloan are citizens and residents of the city of Baltimore, Md., and that the defendant the Norris Sash Pulley Company is a West Virginia corporation, but having its place of business and principal office in the city of Baltimore; that the plaintiff and the defendant Sloan are prac tically the substantial owners of all the stock of the Norris Sash Pulley Company, to wit, nine shares being held by the Sloans, and three shares by the plaintiff. The bill further alleges that on the 14th of May, 1899, by an agreement between the parties, the firm of Frank B. Sloan & Co. was constituted managing and selling agents of the pulley company; the contract providing that, as such agents, they should pay all expenses of manufacture and of conducting the business, including a commission, as compensation for their services, on all sales, and to pay over the residue to the sash pulley company. Subsequently, in September, 1905, Frank B. Sloan & Co. failed and made an assignment for the benefit of creditors, and the plaintiff, who had been employed as bookkeeper and salesman, in connection with the business of the company, was notified by the trustee that his services would no longer be required in this capacity. Thereupon the plaintiff engaged in the sash pulley business with another house, in the same line of work. Afterwards, F. Eugene Sloan, a son of Frank B. Sloan, was elected by the votes of the nine shares of stock held by them, president, secretary and treasurer of the company, and conducts the same business under the tradename of "F. B. Sloan & Co." And on the 19th of January, 1906, a contract was made between F. B. Sloan & Co., the appellant

here, and the Norris Sash Pulley Company, whereby the former was appointed agent for the latter, upon the identical terms in all respects, as those herein mentioned, formerly had with his father, except with an increased commission on sales. The bill also charges that the plaintiff was elected one of the five directors of the pulley company; the remaining four directors being chosen by the Sloan family, and that, as stockholder and director of the company, he requested the right to inspect the books, records, and accounts of the company, but was only shown a minute book, containing reports of the meetings of stockholders and directors; it being stated that the company had no other books, and that all other books, accounts, etc., are the property, not of the company, but of the agents. The bill then charges that F. Eugene Sloan, trading as Frank B. Sloan & Co., is the agent of the pulley company, and, as such, is bound to render a true and accurate account of the business so conducted by him as agent, and these accounts when submitted to the company should be open to the inspection and consideration of the board of directors, and of each member thereof; that the relationship existing between the majority of the directors of the company and the agent of the company (F. Eugene Sloan being not only the agent, but a director, president, secretary, treasurer, and chief stockholder of the company), makes it necessary that the board of directors should be fully advised of the business conducted by the agent of the company; that the company controlled by F. Eugene Sloan has been called upon by the plaintiff, both as a stockholder and as a director, to require from its agent F. Eugene Sloan, doing business as F. B. Sloan & Co., an accounting, but this the company has refused to do; that this refusal is due to improper and fraudulent motives, and is based upon the fact that the agent, and the president, secretary, and treasurer of the company are one and the same person. The bill further charges that the action of the defendants herein, and of the majority of the directors of the company, is fraudulent, oppressive, and in violation of his legal rights. The prayer of the bill is, first, that the defendant F. Eugene Sloan, trading as Frank B. Sloan & Co., be required, as agent, to render to the Norris Sash Pulley Company a full and detailed report and account of his transactions as such agent, accompanied with all vouchers, etc., relating to such transactions; second, that the defendant the Norris Sash Pulley Company may be required hereafter at proper times to exact of its agent such due and proper accounts, and then follows the usual prayer for general relief.

The defendant Frank B. Sloan & Co. demurred to the amended bill, based upon the following grounds: (1) That the court lacks jurisdiction, because to grant the relief prayed would involve interference with the

tion, the Norris Sash Pulley Company; (2) that the plaintiff has not stated in his bill such a case as entitles him to any relief in equity against this defendant; (3) and for other causes to be assigned at the hearing. We have set out the averments in the bill, which cover 13 pages of the record, in greater detail than usual, so as it may clearly appear what are the real questions involved on this appeal between the parties, and we will now proceed to consider them: The relief sought under the second (b) prayer of the bill, that the Norris Sash Pulley Company be required hereafter to exact of its agents a proper accounting, is not urged in this court; it being practically conceded by the appellee that this prayer of the bill would be beyond the jurisdiction of the court, and within the rule relating to the internal management of a foreign corporation. Condon v. Mutual Reserve Fund Ass'n, 89 Md. 99, 42 Atl. 944, 44 L. R. A. 149, 73 Am. St. Rep. 169. The real and substantial question presented on the record is whether the facts alleged in the bill and admitted by the demurrer to be true entitled the plaintiff to the relief, under the first (a) prayer of the bill; and that is, that the agent, F. Eugene Sloan, be required to account to the company, its principal, and that the plaintiff be permitted to inspect the books of the corporation. There can be no question, it seems to us, that a court of equity has jurisdiction to require a factor or agent to account to his principal upon the allegations set out in this bill. Weihenmayer v. Bitner, 88 Md. 331, 42 Atl. 245, 45 L. R. A. 446. In this case, the company, of which the plaintiff is a stockholder and director, refused, upon demand, to require the accounting, and the relief is asked by the plaintiff, on behalf of the company.

The rule is stated in Booth v. Robinson, 55 Md. 438, to be, that the proper and primary party to call the directors to an account, for fraud or breaches of trust in the management of the affairs of the corporation, is the corporation itself. But to enable a shareholder, either for himself alone, or for himself and others, to maintain a bill against directors for such fraud or breaches of trust, he must allege and show, not only the violations of duty or breaches of trust on the part of the directors, but that he, as stockholder, has been damnified thereby, and that the corporation has failed or refused to take the proper steps for the redress of the wrong. In the case at bar, the bill distinctly avers that the refusal of the company to take the steps required is due to improper and fraudulent motives, and is based upon the fact that the agent, the president, secretary, treasurer, and majority stockholder, and majority director, are one and the same individual, and that the action of the defendants, and of the majority of the directors of the company, is fraudulent, oppressive, and in violation of his legal duties. In DuPuy v. Terminal Com

is distinctly held that when the acts of the officers of a corporation are fraudulent, illegal and ultra vires, any stockholder is entitled to ask for the protection of a court of equity. 3 Pomeroy Equity Juris. p. 2124; Shaw v. Davis, 78 Md. 308, 28 Atl. 619, 23 L. R. A. 294; Bond v. Gray Imp. Co., 102 Md. 426 426, 62 Atl. 827. These principles are well settled in this state and elsewhere, and the reasons on which they rest are so fully stated in the adjudicated cases as to need no further comment here. But it is urged upon the part of the appellant that the pulley company is a foreign corporation organized under the laws of the state of West Virginia, and the courts of this state have no jurisdiction over any case whatsoever that involves the internal management of a foreign corporation.

In answer to this contention, it can be said, that the plaintiff abandons the relief sought by him under the second (b) prayer of his bill, and rests his case upon the first (a) prayer, which asks on behalf of the corporation, or that the corporation itself require an accounting from its agent, who has charge of the entire business of the company. The corporation is composed entirely of citizens of Maryland, and its business appears to be conducted within the state. The agent, F. Eugene Sloan, is a resident of the state, and his firm is a Maryland company, so the suit could only be brought in the jurisdiction where the defendant from whom the accounting is desired resides, and where he is subject to process. It is clear, if the corporation had brought the suit against its agent, a resident of Maryland, the court would have jurisdiction to entertain the bill, and we do not therefore see upon what ground the jurisdiction of the court to entertain this suit can be questioned. In Ernst v. Rutherford, 38 App. Div. 388, 56 N. Y. Supp. 403, it is said: The right of the plaintiffs, as stockholders, to compel a restoration by the officers of the corporation is coextensive with the right of the corporation itself. Surely the corporation would not be confined to the courts of the state which created it, but could pursue its officers in whatever jurisdiction it might find them; otherwise it would be remediless, if those officers remained without the state. If the corporation could revoke the relief, in this jurisdiction, the plaintiff, as stockholder and director, can institute and maintain such a suit. The rationale of the rule is thus stated by Mr. Pomeroy in his work on Equity Jurisprudence, vol. 3, § 1095. The stockholder does not bring such a suit because his rights have been directly violated, or because the cause of action is his, or because he is entitled to the relief sought; he is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court. The stockholder, either individually or as the representative of the class, may commence the suit, and may prosecute

it to judgment; but in every other respect the action is the ordinary one brought by the corporation, it is maintained directly for the benefit of the corporation, and the final relief when obtained belongs to the corporation, and not to the stockholder plaintiff. There is nothing in this view that conflicts with the cases relied upon by the appellant in his brief. Those cases are very different from this. They rest upon dissimilar facts and the application of different legal principles.

It is also contended that the suit cannot be maintained because the plaintiff is a minority stockholder, and, as such, cannot invoke the interposition of a court of equity. The cases of Shaw v. Davis, 78 Md. 308, 28 Atl. 619, 23 L. R. A. 294, and Bond v. Gray Imp. Co., 102 Md. 426, 62 Atl. 827, are relied upon to sustain this well-settled proposition. It appears, however, in the case now before us, that the bill distinctly charges that the refusal of the company to act is due to improper and fraudulent motives, and the action of the defendants, and of the majority of the directors of the company, is fraudulent, oppressive, and in violation of his legal rights. It also alleges that the defendant is the managing agent of the corporation, who conducts the entire business of buying, manufacturing, and selling, and turns over to the company the net profits, less his commissions; that this agent is also the president, the secretary, the treasurer, majority stockholder, and majority director of the Pully Sash Company; the company, who is F. Eugene Sloan, has refused upon demand of a stockholder and director to require Sloan, as agent, to render an account as such agent to the company, of the business of the corporation. These allegations are admitted by the demurrer to be true, but it is denied that the plaintiff is entitled to any relief. We fully agree with the court below in the statement that the effect of allowing the validity of such a defense in a case like this would be to declare that, if in any corporation, one man can obtain control of a majority of the stock, he may appoint himself agent, carry on the entire business of the corporation, and render only such accounts as he, in his capacity of the majority holder of the corporate stock, may require from himself in his capacity of agent. The allegations of the bill, in this case, we think, are sufficiently clear and definite to sustain the court below in overruling the defendant's demurrer, and requiring an answer on the part of the appelant. The acts complained of are charged to be both fraudulent and illegal, and if they can be established, and shown to be true, would entitle the plaintiff to the relief asked. Bond v. Gray, 102 Md. 426, 62 Atl. 827; Weihenmayer v. Bitner, 88 Md. 325, 42 Atl. 245, 45 L. R. A. 446.

For the reasons stated, the order of the circuit court of Baltimore City will be affirmed, with costs.

Order affirmed, with costs.

(105 Md. 308)

CON

DICK et al. v. BIDDLE BROS. (Court of Appeals of Maryland. March 1, 1907.) 1. EVIDENCE BEST AND SECONDARY TENTS OF WRITING ADMISSIBILITY. In an action for a balance due on a contract, where it was shown that a proposal from plaintiff, made out by the witness, had been received and accepted by one of the defendants, who declined to produce it in response to a written notice, plaintiff was properly allowed to show by the witness the contents of the proposal.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 570, 595-597.]

2. SAME-BOOKS OF ACCOUNT-ADMISSIBILITY. In an action on a contract, evidence of entries contained in a book, which purported to be a copy of original entries made by the witness and used by him, not for the purpose of aiding his memory, but as substantive and independent evidence of charges contained in the bill of particulars, was improperly admitted.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 556, 557.] 3. TRIAL INSTRUCTIONS TO ISSUES.

APPLICABILITY

In an action for a balance due on a contract, an instruction, which failed to limit the recovery for the work done to contract prices, as set forth in the declaration, was erroneous.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 46, Trial, §§ 587-595.]

4. SAME VERDICT - CONFORMITY TO PLEAD

INGS.

Where, in an action for a balance due on a contract, the jury found for plaintiff in a greater sum than that claimed in plaintiff's bill of particulars, the judgment will be reversed.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trial, § 784.]

5. CONTRACTS - ACTIONS - EVIDENCE-SUFFICIENCY.

In an action against a husband and wife for a balance due on a contract, where the only evidence that the husband was a party to the contract was that his check for $400 was received by the plaintiff and credited on the account, he cannot be held liable.

Appeal from Circuit Court, Wicomico County; Charles F. Holland and Henry Lloyd, Judges.

Action by Biddle Bros. against Minnie Mills Dick and another. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

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

F. Leonard Wailes, for appellants. Elmer H. Walton and John H. Handy, for appellee.

BURKE, J. The appellees brought suit against the appellants in the circuit court for Wicomico county, and recovered a judgment for the sum of $336.56, from which this appeal was taken.

The declaration contained the common counts, and three special counts. Two witnesses were produced on behalf of the plaintiff, but no testimony was offered by the defendants. During the course of the trial, five exceptions were taken by the defendants,four to the ruling of the court on the admissibility of evidence, and one to the action of the court upon the prayers submitted by the

May 3-Oct. 7, 1904.

To plumbing as per contract.

gas piping house as per contract........... "radiator in bathroom as per contract.......

44

extra for connecting rain spout to

sewer

"15 ft. of 4 in. soil pipe.............. $ 3 60

60

"2 ft. 4 in. bends.

"15 lbs. of lead...

105

4 hours time plumber and helper 75c. .......

3.00

$554 00 122 00 26 75

8 25

25 01

33 25

21 50

16 30

The case was tried on the 24th of September, 1906, and it appears that on the 22d day of March, 1906, the plaintiff's served upon the defendants' attorneys a notice to produce at the trial of the cause the proposal submitted by the plaintiffs, either directly or indirectly, to the defendants or either of them, of the work to be done by the plaintiffs for the defendants, as set forth in the bill of particulars, and particularly the typewritten proposal, estimate, specification, or specifications submitted by the plaintiffs to the defendants, or either of them, directly or indirectly, for the work mentioned in the first three items of the bill of particulars, and set forth in the narr., filed herein. The proposals or specifications called for were not produced in response to the notice. At the trial the court permitted Arthur Biddle to testify:

(1) That he and Harry Biddle were partners, trading as "Biddle Bros.," and were engaged in the business of plumbing, and offered to show that Minnie Mills Dick, one of the defendants, sent for him and asked him to furnish an estimate of cost for doing certain plumbing work at her farm in Wicomico county, and that, after calling on her, he submitted a proposal to her for the work which she desired to have done. The written proposal was produced and offered in evidence. It was addressed to Mrs. Dick, and showed an offer on the part of the plaintiff to do certain specified work at her residence. The plumbing work, the nature and character of which were specifically described in the proposal, was to be completed for $646; a radiator in the bathroom and the necessary work in connection therewith was to cost $26.75; a gas machine and a gas pipe house, with about 50 lights, was to cost $122. The proposal provided for two bathrooms. The witness testified that, after Mrs. Dick had examined the proposal, she wanted one of the bathrooms left out, but no other changes were to be made; that he made out a new proposal, and took the same to Samuel S. Smyth for the purpose of having it sent to Mrs. Dick: that later, on the same day on which he had delivered the new proposal to Smyth, the witness called Mrs. Dick over the phone, and testified that he recognized her voice; that he asked her if she had received the new proposal, and she said she had received the $554 proposal, and told him to go on with the work; that the new proposal was for the contract price of $554, and the original proposal (which had been offered in evidence, and which witness stated had been submitted to Mrs. Dick) was precisely the same as the new proposal which he said Mrs. Dick had accepted over the phone, except the item of one bathroom, which had been eliminated, and which had thereby re