duced the original contract price from $646 to $554. The first special count is based upon this contract. The defendants objected to this evidence, and, their objection being overruled, they excepted, and this constituted their first bill of exceptions.

(2) The witness then testified on cross-examination that he did not see the copy of the new proposal as made out and given to Smyth to be sent to Mrs. Dick, either before or after it was sent to her; that Mrs. Dick said she had received the new proposal, and told him to go ahead with the work. The defendants "moved the court to rule and exclude from the jury the proposal as offered in evidence by the plaintiffs." This motion the court denied, and the defendants excepted, and this constitutes the second bill of exceptions.

The first and second exceptions may be considered together, as they involve substantially the same question. The evidence tended to show that the witness had himself made out the new proposal, and that it had been received by Mrs. Dick, who had directed him to proceed with the work; and, she having declined to produce it in response to the written notice to which we have referred, the legal result of its nonproduction was to permit the plaintiffs to offer secondary evidence of its contents. This they did in the way we have mentioned. As the method adopted to prove the contents of the proposal was not open to valid objections, and as the evidence offered of its contents was very satisfactory, the court was right in its ruling on both objections to the testimony.

(3) The witness was then asked if he had done any other work "for the defendant, Minnie Mills Dick," and he said he had, and that the work done was set out in the bill of particulars. He was then asked to refer to his books, and tell the respective items on which "Minnie Mills Dick was indebted to the plaintiffs." The witness stated that he did not make the entries in said book, was not present when they were made, but said they were made by his bookkeeper from the original entries in another book kept by the witness, although said witness testified to all items in said bill of particulars, and said he was present when the work was performed, and that said entries had been made in said books by the bookkeeper from the original entries made by him, and the witness had himself compared the entries and knew they were correct, and had performed a part of all the work himself, and knew that the entries were correct, and knew that the work as charged was correct, apart from said entries. To the offer of the entries in said book in evidence, the defendants objected, and, their objection being overruled, and the court having permitted the entries in the book to be read in evidence, the defendants excepted, and this constitutes the third bill of exceptions.

(4) The witness then testified that as to the

number of hours of work his employés had performed, as charged in said books and set out in the aforesaid bill of particulars, he had employed the men and knew the time they had been employed; that he had personal knowledge of all the work, and knew the time was correct, though the said entries were not made by him, and he admitted he had no knowledge of the correctness of the exact number of hours of work of some of the employés, and was not present, though he did know as superintendent of the work, and the time required for the work, that the time charged is correct as told and given in by said employés. To this testlmony the defendants objected, and the court overruled their objection, and this constitutes their fourth exception.

The third and fourth exceptions may also be considered together. They relate to the introduction in evidence of the entries contained in a book produced by Arthur Biddle, one of the plaintiffs. The book purported to be a copy of certain original entries made by the witness, and was used by him, not for the purpose of alding his memory, but as substantive and independent evidence of charges contained in the bill of particulars. The circumstances under which the entries in such a book may be used, and the purposes to which they may be used, have been stated in a number of cases in this court, among which are the cases of Bullock v. Hunter, 44 Md. 416, Owens v. State, 67 Md. 307, 10 Atl. 210, 302, and Stallings v. Gottschalk, 77 Md. 429, 26 Atl. 524. The facts embraced in these exceptions, as hereinbefore set out, do not bring the offer within the authority of those cases so as to make the entries evidence in such a way as was done in this case.

(5) The witness further testified that Minnie Mills Dick accepted the work, and that there was a balance of $300.45 still owing, and on cross-examination he testified that he never had any conversation with the defendant Frank M. Dick, the husband of Minnie Mills Dick, in regard to said contract, or the work done or the materials furnished either before or after the said contract and the doing of said work; but that the payment of $400 on the 30th day of June, 1904, had been made by the said Frank M. Dick. The record then states that the plaintiffs called a competent witness, who testified that he did a part of the work testified to by Mr. Biddle, and, after the same was completed, he went over the premises with Mrs. Dick, and that she made no objections to the work, except some trifling defect, which he remedied. At the close of the testimony, the plaintiffs offered one prayer, which was granted, and the defendants submitted nine prayers, all of which were by the court refused. To this action of the court, the defendants excepted, and this constitutes the fifth bill of exceptions.

By the plaintiffs' prayer the jury were told that if they found from the evidence that the plaintiffs were employed by the defendant, or

either of them, to do the work and furnish the materials mentioned in the narr. and accompanying bill of particulars, and did perform said work and furnish said materials, and further find the same, after being so done and furnished, were accepted by the defendants, then their verdict must be for the plaintiffs, and if they find that after the work was all finished and completed, and materials furnished, the defendant Minnie Mills Dick went over the work with an employé of the plaintiff, and examined the same, and made no objection to the same, except a trifling defect, which was remedied on the spot by said employé and occupied the same without objection to the said work and materials, and that they may consider that fact with the other evidence in the case in determining an acceptance on the part of said defendants, and if they find for the plaintiff their verdict must be for such sum as the evidence will satisfy them the plaintiffs are entitled for the services rendered and materials furnished, together with interest, if any, as the jury may believe the plaintiffs are entitled to.

The defendants' first, second, and third prayers asserted that there was no evidence in the case legally sufficient to entitle the plaintiffs to recover against both defendants under either of the special counts of the declaration; and the fourth prayer asserted that there was no evidence legally sufficient, under the pleadings and evidence, to entitle the plaintiffs to recover against Frank M. Dick; and the fifth prayer, that there was no legally sufficient evidence to entitle the plaintiffs to recover under the common counts. The defendants' sixth, seventh, eighth, and ninth prayers asked the court to instruct the jury that there was no evidence legally sufficient to entitle the plaintiffs to recover for the items of extra work specifically mentioned in each of those prayers.

The plaintiffs' prayer was bad, and should have been refused. It failed to limit the recovery, for the work done under the special contract, to the contract prices as set forth in the eighth, ninth, and tenth counts of the declaration, and, since the jury found for a greater sum than that claimed in the bill of particulars, the judgment for this reason alone must be reversed. A like prayer, under a very similar state of facts as that contained in this record, was declared wrong in the case of Walsh v. Jenvey, 85 Md. 240, 36 Atl. 817, 38 Atl. 938. We do not find in this record any evidence whatever upon which Frank M. Dick can be held liable upon the causes of action sued on. According to the plaintiffs' evidence, the property was owned by Mrs. Dick, the proposal for the work was made to Mrs. Dick, the contract was made with her, she alone accepted it, and no communication of any kind passed between the plaintiffs and Frank M. Dick either before or after the making of the contract with Mrs. Dick, or during the course of the work, and no charge was

made against him by the plaintiffs, and no account was ever rendered to him. There is absolutely nothing in the case to fix a liability upon him. The mere fact that it appears

from the bill of particulars, and by the testimony of Arthur Biddle, that on June 30, 1904, a check of F. M. Dick for $400 was received by the plaintiffs, and credited upon the account, is wholly insufficient in an action of this nature to impose a liability upon him. In Hand v. Evans Marble Co., 88 Md. 226, 40 Atl. 899, Judge Pearce announced the principle, which we think controls this branch of the case: "The general rule has long been established that: 'One who is not a party to a contract cannot be included in the rights and liabilities which the contract creates, so as to enable him to sue, or be sued thereon.' A man cannot incur liabilities, and, again, a man cannot acquire rights, from a contract to which he is not a party." We therefore think that, upon the evidence contained in this record, the defendants' first, second, third, and fourth prayers, which asserted that there was no legally sufficient evidence to hold Frank M. Dick liable for the bill sued on, should have been granted.

There was no error in refusing the other prayers of the defendants, as there was evidence in the case tending to show Mrs. Dick's liability for the extra work charged, and for which the plaintiffs could have recovered under the common counts.

For the errors committed by the court, in its rulings upon the third, fourth, and fifth exceptions, the Judgment must be reversed. Judgment reversed, with costs, and new trial awarded.

In slander for calling plaintiff a liar and a thief, the evidence showed that plaintiff and defendant had a dispute over bills for goods sold by defendant to plaintiff, and that defendant in his store, while disputing with plaintiff, called him a thief and a liar. There was nothing to show that the bystanders hearing the words knew the nature of the dispute. Defendant before the trial and after suit brought stated in the presence of a third person that he had called plaintiff a liar and a thief, and could prove it. Held, that the question whether defendant used the language as imputing a crime to plaintiff and was so understood by the bystanders was for the jury.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 357, 358.] 2. SAME-MALICE-EVIDENCE.

In slander, the jury may consider a subsequent repetition of the slanderous words in determining the presence of malice in speaking the words at the time charged in the declaration.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Libel and Slander, §§ 286-288.]

Appeal from Baltimore City Court; Dan'l Giraud Wright, Judge.

Action by Thomas Cain against William 'Shutt. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Argued before BRISCOE, BOYD, BURKE, SCHMUCKER, PEARCE, and ROGERS, JJ. Arthur L. Jackson, for appellant.

SCHMUCKER, J. The appellant sued the appellee in the Baltimore city court for slander. The declaration contained but one count. It averred that the defendant, on a day named, at No. 608 East Baltimore street, in the city of Baltimore, falsely and maliciously spoke and published of and concerning the plaintiff the words following; that is to say: "You are a thief," "You are a beat," "You are a liar," and "You are a dead beat." The defendant pleaded not guilty.

On the trial of the case at the close of the plaintiff's evidence the court granted the following prayer offered by the defendant: "It appearing from the plaintiff's own testimony that the language alleged to have been used by the defendant was not used as imputing a crime to the plaintiff, and could not have been so understood by the bystanders, the verdict must be for the defendant." The jury thereupon under the court's direction rendered a verdict for the defendant, and a judgment was entered thereon from which the present appeal was taken. The plaintiff at the trial, after stating that there had been a dispute of about two years standing between him and the defendant over the bill for some goods purchased by him from the latter, testified as follows: "I came to Baltimore and brought his oil can back that he loaned me to take the oil in. I brought that can back, and asked him how much money did I owe him. He said, 'You know.' I said, 'I don't owe you for the oil.' He said, 'Yes; you do.' I said, 'I do not.' He said, 'You know devilish well you do.' He said, 'You are a thief.' I said, 'No, sir; I am no thief.' He said, 'You are, you are, a beat.' I said, 'No, sir; I am no beat.' He said, 'You are a liar; and, not only that, you are a dead beat.' He repeated those words several times, and I contradicted him several times that I was no beat and no thief." A Mr. Hopwood at that juncture came in to the store, and, according to the plaintiff's account, the defendant having gone back of the counter commenced to tell Hopwood that the plaintiff had come in there to beat him out of some money, whereupon the plaintiff stepped up to him, and said: "No; I am not trying to beat him out of any money. I am trying to explain that I had already paid him for the oil. He said, 'You are a liar,' 'You are a thief,' and he repeated it right over again before Mr. Hopwood, and then I walked out." The plaintiff further testified that, when the defendant applied to him the language complained of, there were in the store besides Mr. Hopwood a young clerk, about 15 or 16 years old, and also a

gentleman, about 55 or 65 years old, neither of whom were personally known to the plaintiff.

Upon cross-examination the plaintiff said that the defendant was angry and acted very ugly when applying the objectionable epithets to him; and he answered, "Yes," to the question whether the language used by the defendant did not relate to the transaction of the nonpayment of the bill. The plaintiff on redirect examination testified that on the second day before the one on which the case was tried he was standing in the courthouse by the side of his counsel, who was engaged in conversation with Mr. R. T. Gill of the defendant's counsel, when the defendant came up and said: "I am your man. You have no case. I called him a liar and a thief, and I can prove it." Mr. Gill was put upon the stand by the plaintiff, and fully corroborated his account of what the defendant had said at the interview in the courthouse. With this evidence in the case we think the court below erred in taking the case from the jury. There was clear proof of the application by the defendant to the plaintiff of an epithet actionable per se at the interview in the store in the presence of three other persons and of the repetition of the same expressions in the courthouse, accompanied by the assertion that he could prove their truth, in the presence of the counsel for both parties. There was evidence from which a jury might have concluded that the slanderous words used in the interview at the store were uttered in heat, and not wantonly or through spite or hatred, or even under such circumstances as to indicate, to persons fully informed of the occasion of their utterance an intention to impute to the plaintiff the commission of theft. But no such mitigating conditions attach to the voluntary and unprovoked repetition, at the interview at the courthouse, of the same charges accompanied by an assertion of an ability to prove them; nor does it appear that the clerk or the gentleman who stood by the stove at the interview in the defendant's store had such knowledge of the circumstances under which, the slanderous words were uttered as to know that the defendant did not intend to impute to the plaintif the commission of a crime. The mere fact that those two persons were present in the store of the defendant when he uttered the slanderous words, without proof that their position was such that they must have heard the entire conversation between the plaintiff and defendant, and that they were familiar with the nature of the dispute between them, did not justify the court in instructing the jury that the defendant's language could not have been understood by the bystanders as imputing a crime to the plaintiff.

The jury were also entitled to consider the repetition of the slanderous words by the defendant at the interview in the courthouse, mentioned in the testimony, in determining

the presence or absence of malice of the defendant in speaking the words laid in the declaration. This would have been true, even if the words laid in the declaration had been uttered under circumstances of privilege. In Garrett v. Dickerson, 19 Md. 418, this court said, upon the authority of many cases there cited: "Although the occasion may be such as to justify the legal inference of privilege, yet the jury may look to the words themselves, in connection with other facts and circumstances than those from which the privilege is deduced, in passing upon the question of express malice, and evidence of any other words or acts having reference to the subject-matter of the actionable words may be submitted to the jury for the same purpose, whether such words or acts were spoken or done before or after suit brought." The same principle was asserted in Duvall v. Griffith, 2 Har. & G. 31, and Boteler v. Bell, 1 Md. 178. In Gambrill v. Schooley, 95 Md. 260, 52 Atl. 500, 63 L. R. A. 427, we said: "The mere utterance of defamatory words not privileged may afford no substantial evidence of malice in fact. They have been spoken in thoughtless, though indiscreet, jest, in unguarded repetition of idle rumor, or in momentary heat, free from real malice; but, if it be shown that similar words referring to the same subject have been uttered with more or less frequency, either before or after those charged, a presumption is created, varying in strength with the frequency and character of such utterances, that the words charged were not merely malicious in law, but in fact." The rule there announced is in our opinion applicable with especial force to the present case.

The judgment appealed from must be reversed, and the case remanded for a new trial.

Judgment reversed, with costs, and new trial awarded.

(105 Md. 90)

LUCAS v. TAYLOR et al. (Court of Appeals of Maryland. Feb. 28, 1907.) 1. MARITIME LIENS-TIME FOR FILING LIEN CLAIM-STATUTORY REASONS.

Under Code Pub. Gen. Laws, art. 63, § 44, requiring a lien claim against a vessel to be filed within six months from the commencement of the building, repairing, equipping, or refitting of the same, a lien claim for the installation of an electric light equipment, begun after the commencement of the building of the vessel, was properly filed within six months from the time the work on such equipment was commenced.

2. SAME-SUFFICIENCY OF CLAIM.

Under Code Pub. Gen. Laws, art. 63, § 44, requiring a lien claim against a vessel for materials furnished or work done in building, repairing, or equipping the same to state, among other things, the place where the boat was built, repaired, equipped, or refitted, a lien claim stating that the work was done and materials were furnished at the instance and request of a certain shipbuilding company in Baltimore city was sufficient.

3. SAME-OWNERSHIP OF VESSEL-CONTRACTCONSTRUCTION.

Under a contract whereby a shipbuilding company agreed to construct and fully complete, on or before a certain date, for a steamboat company, a steamer at a certain price, and providing for the payment of the purchase money in installments as the work progressed, the steamboat company being entitled to have an inspector present in the yard of the builder, the last installments of the purchase price to be paid on completion of a satisfactory trial trip and within a certain time after delivery in accordance with the terms of the contract, etc., the ownership of the vessel, as respected a lien for work performed and material furnished in the building thereof, remained in the shipbuilding company, irrespective of the fact that in a supplemental memorandum appended to the contract the steamboat company was several times designated as the owner.

4. SAME-LIEN CLAIM-AMENDMENT OF PROCEEDINGS.

Under Code Pub. Gen. Laws, art. 63, § 41, providing that the article shall be construed and have the same effect as laws which give general jurisdiction or are remedial in their nature, and authorizing the making of proper amendments at any time in the proceedings, commencing with the claim or lien to be filed and extending to all subsequent proceedings, where a lien claim against a vessel described a shipbuilding company as agents and contractors of the vessel and a steamboat company as its owner, an amendment of proceedings to enforce the lien, describing the former company as the owner and builder, and the latter company as being "now the owner," was properly permitted, neither the shipbuilding company nor the steamboat company being prejudiced thereby, and another defendant purchasing the completed steamer from the steamboat company not averring in its answer to either the original or amended bill to enforce the lien that it purchased the boat without notice of the lien.

5. SAME METHOD OF AMENDMENT-SUFFICIENCY.

The amendment was not ineffective because no amended lien claim was filed in the clerk's office, defendants not demurring to the amended bill, or by any form of pleading objecting to the manner in which the amendment had been made, and, moreover, formally adopting by a paper filed by them in the case, as their answers to the amended bill, the ones which they had, respectively, filed to the original bill. 6. SAME EXPIRATION OF LIEN-STATUTORY PROVISIONS.

Under Code Pub. Gen. Laws, art. 63, § 46, providing that a lien on a vessel for materials furnished or work done shall continue for two years from the day on which the lien claim is filed and no longer, where proceedings are begun within two years from the filing of a lien claim to enforce the same, the lien does not expire at the end of such two years, and before the filing of the decree.

Appeal from Circuit Court No. 2 of Baltimore City; Pere L. Wickes, Judge.

Bill by J. O. M. Lucas against Archibald H. Taylor and others, receivers. Decree for defendants, and plaintiff appeals. Reversed.

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

Alexander Preston, for appellant. Arch. H. Taylor and Edward Duffy, for appellee.

SCHMUCKER, J. This is an appeal from a decree of circuit court No. 2 of Baltimore city dismissing a bill filed by the appellants for the enforcement of a boat lien. The lien

was claimed against the steamer Anne Arundel, which was built at Baltimore city by the Baltimore Shipbuilding & Dry Dock Company under a contract with the Weems Steamboat Company. The lien claim was for a balance of $1,764:13 for work done and materials furnished in equipping the steamer with an electric light plant at the instance of the shipbuilding company.

It appears from the record that the keel of the steamer was laid on or about January 2, 1904, and the completed vessel was delivered on July 1, 1904, to the Weems Steamboat Company, which paid in full the contract price for its construction. The formal contract for building the steamer was not actually executed until 11 days after the construction had been commenced, but the terms of the contract had been agreed upon. The contract for installing the electric light plant on the steamer was made between the appellants and the shipbuilding company on April 19, 1904, and the work called for by the contract was completed by July 1, 1904. A few changes or alterations were made in some of the wires between July 1st and 11th after the steamer had passed into the hands of the Weems Steamboat Company, and the charges for those alterations form part of the lien claim. The claim was filed in the office of the clerk of the superior court on October 11, 1904, which was within six months from the commencement of the work for which the lien is claimed, but not within that time from the laying of the keel of the steamer. The claim is in the usual form, and states that the work was done and the material furnished by the appellants "at the instance and request of the said Baltimore Shipbuilding & Dry Dock Company in said Baltimore City." In the claim as originally filed the shipbuilding company were described as "agents and contractors" for the steamer and the Weems Steamboat Company as its owner, but by the amendment hereinafter mentioned the former company was described as its owner and builder and the latter company as being "now the owner." After the steamer had been completed and delivered to the Weems Steamboat Company, the shipbuilding company failed, and its affairs were by a decree of the circuit court of Baltimore city placed in the hands of Archibald H. Taylor and Walter Ancker, as receivers, and the Weems Company sold the steamer to the Maryland, Delaware & Virginia Railway Company. In that situation of affairs the present bill for the enforcement of the lien was filed on February 24, 1904. The bill alleges the facts which we have mentioned, and prays for a sale of the steamer for the satisfaction of the lien. A certified copy of the lien claim was filed with the bill as an exhibit. All of the defendants answered the bill. The receivers of the sh.pbuilding company and the Weems Steamboat Company in their answers deny the validity of the lien, but the railway company states that it has no

knowledge of the facts set forth in the bill, and neither admits nor denies them, but demands proof of them. The railway company further states in its answer that it has purchased the steamer Anne Arundel with all the other property of the Weems Steamboat Company, but does not aver that it has paid for the same nor set up the defense of being a bona fide purchaser for value without notice of the lien.

The plaintiffs took testimony proving their contract with the shipbuilding company for the installation of the electric lighting plant on the steamer, the performance by them of the contract on their part, that the balance claimed of $1,764.13 of the contract price remained unpaid, and that on September 26, 1904, they gave written notice to the Weems Steamboat Company of their intention to claim a lien therefor. The defendants put in evidence the contract for building the steamer between the shipbuilding company and the Weems Steamboat Company. It was admitted that the Weems Steamboat Company paid to the shipbuilding company the full contract price for the construction of the steamer. The learned judge below filed no opinion in the case, and we are therefore not informed as to the ground on which he relied in dismissing the bill.

The reasons asserted in argument by the appellees for denying the validity of the lien claim were substantially as follows: That the appellants were subcontractors to whom the Code does not give a lien on boats; that the lien claim was not filed within six months from the commencement of the building of the steamer; that the claim does not state at what place the boat was built; that the Weems Steamboat Company, and not the. shipbuilding company, was the owner of the steamer; that there was no proper amendment of the lien claim; and that the lien, if it ever was valid, had expired by limitation at the date of the decree. The provisions of the Code of Public General Laws, in reference to liens on boats and vessels, are found in article 63, relating to mechanics' liens. Section 43 provides that all boats or vessels of any kind whatsoever used or intended to be used on the Chesapeake Bay or other waters of this state, or belonging in this state, shall be subject to a lien and bound for the payment thereof as preferred debts for all debts due to boat builders, mechanics, etc., from the owners, masters, captains, or other agents of such boats or vessels for materials furnished or work done in the building, repairing, or equipping the same. Section 44 requires the lien claim to be filed in the office in Baltimore city of the clerk of the superior court "within six months from the commencement of the building, repairing, equipping or refitting of the boat or vessel," and provides that the claim shall state, along with other things, the place where the boat was built, repaired, equipped or refitted. Section 46 provides that the