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not have personal knowledge of the defect in the bridge, they were not liable, and it might have been so arg :d under this instruction. In addition to the other facts stated in the prayer, had it stated that, before the jury could find for the plaintiff, they must find that the defendant, or its agent, the road supervisor, in charge of the road and bridge, knew of the bad condition of the bridge, the instruction would have been free from objection. The defendant's second prayer is open to the same objection; but we find no error in its third prayer. The question asked Dr. Guy Steele, and the answer of the witness thereto, which constitute the first and second exceptions, were properly allowed, in view of the testimony given by the physicians, who testified on the part of the plaintiff, as this evidence tended to lessen the value of their testimony as to the exact nature of the plaintiff's injury.

For the error committed in granting the defendant's first and second prayers, the judgment must be reversed.

Judgment reversed, and case remanded for a new trial, with costs to the appellant above and below.

ligated to pay and which defendant represented was not due.

[Ed. Note.- For cases in point, see Cent. Dig. vol. 23, Fraud, 88 60–65.) 4. SAME—TRIAL-INSTRUCTIONS.

In an action of deceit for damages alleged to be due to fraudulent representations, where plaintiff testified that defendant made certain statements and defendant denied that he did, the question was whether he did or not, and the court was not warranted in instructing that; where a transaction which is challenged admits equally of an honest or dishonest construction, the jury should accept the construction in favor of honesty.

Appeal from Circuit Court, Kent County; Austin L. Crothers and Wm. H. Adkins, Judges.

Action by Hester V. Stoops against L. Bates Russell. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

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

John D. Urie, for appellant. Lewin W. Wickes and Wm. W. Beck, for appellee.

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(106 Md. 138)

RUSSELL V. STOOPS. (Court of Appeals of Maryland. May 17, 1907.) 1. FRAUD-PETITION-SUFFICIENCY.

In an action of deceit, the declaration alleged that plaintiff was induced to exchange her house and lot in town for defendant's farm, subject to a mortgage, by the false and fraudulent representations of defendant as to when the interest was due on the mortgage, and that because of this plaintiff was unprepared and unable to pay the interest when demanded, and in consequence thereof the farm was sold to pay the mortgage, and plaintiff was deprived of the ownership and possession of her house and lot, and suffered damage thereby. Held, that the petition is insufficient, since the damages claimed are for the loss of the house and lot, while the fraud alleged is in reference to the farm. 2. SAME-DAMAGES.

In an action of deceit for damages resulting to plaintiff because of fraudulent representations made by defendant in regard to the interest due on a mortgage on his farm which he traded to plaintiff subject to the mortgage, and because of which plaintiff could not pay the interest so that the farm was sold under the mortgage, where it was not alleged or attempted to be proven that the defendant made the false representations in order to mislead the plaintiff, and thereby cause a default in the entire mortgage so that the property would be sold and he might purchase it, as he did, at a sacrifice, it was error to charge that plaintiff was entitled to recover such damages as she had sustained as the direct consequence of the false representations, providing she could not bave prevented the loss by the exercise of ordinary care and prudence, since this allowed her to recover special damages resulting from the sale of the farm, a circumstance which could not reasonably be supposed, according to the usual course of business, to flow from defendant's act. 3. SAME.

Under these circumstances, plaintiff ought to have been limited in her recovery to the interest on the mortgage which she became ob

BOYD, J. This is an appeal from a judgment rendered against the appellant in favor of the appellee in an action of deceit. On May 12, 1905, the appellant and the appellee, together with her husband, entered into an agreement for exchange of properties; that of the former being a farm containing about 131 acres of land, which was subject to a mortgage of $2,000 due to J. E. Hurlock, and that of Mrs. Stoops being a house and lot in Chestertown. The appellant also agreed to pay Mrs. Stoops $250 “for the landlord's interest in the farm for the year 1905," and to give her possession on January 1, 1906. She had agreed to give him possession of the house and lot on July 1, 1905. The deeds were duly executed and delivered; that of the appellant and his wife to the appellee containing this covenant: "And it is further. more understood tbat said farm is subject to a mortgage to J. Edward Hurlock for two thousand ($2,000) dollars, which the said Hester V. Stoops agrees to assume and pay, and the said L. Bates Russell and Iola K. Russell covenant that they will warrant specially, except as to said mortgage, the above described lands and premises.” The appellee gave the appellant possession of the house and lot in June, 1905, and she took possession of a tenant house on the farm that month; the main house being occupied by a tenant who was entitled to possession until January 1st. The mortgage was dated August 3, 1901, and was payable one year after date, with interest from date, payable semiannually, but it was still held by Mr. Hurlock, who had agreed with the appellant to accept the interest annually. It contained the usual provision in case of default in pay. ment of the principal, interest, or any part thereof, or in any covenant or condition in the mortgage, and required an insurance of $1,200 to be kept on tbe improvements for

the benefit of the mortgagee. At the time Urie, the appellant's attorney, who drew the the agreement was made, and when the agreement but made no reference to the indeeds were delivered, interest was unpaid on terest on the mortgage, sold the property unthe mortgage from August 3, 1904, and on der the mortgage within six weeks of the August 30, 1905, the insurance policy, which time it was assigned to him, and will receive had been taken out for three years, expired. the difference between what he paid for the The foundation of this suit is that the appel- mortgage ($2,154), plus expenses of sale, and lee contends that the appellant falsely and the purchase price ($2,450). Without further fraudulently represented to her that all ar comment on the facts, it is not surprising rears of interest had been paid to the date that a jury rendered a verdict for a substanof the contract; that the mortgage debt bore tial sum; but, whatever we may think of interest only from that date, and that no in such transactions, it is, of course, our duty terest would be demanded or required to be to determine the case according to the espaid by her until after wheat barvest in tablished principles of law without regard 1906; that defendant knew the representa to results, if not within the protection of tions to be false, and made them with the those principles. The questions before us intent to induce her to enter into the con are presented by a demurrer to the narr, and tract and exchange the properties, which she exceptions to granting the plaintiff's prayer did, relying upon the representations. Short and rejecting the first and fourth prayers ly after the year's interest became due (in offered by the defendant. August, 1905) it was demanded of the appel The declaration alleges the exchange of lee, but she did not pay it, and the mortgagee the properties, the false and fraudulent repassigned the mortgage to John G. Urie on No resentations as to the interest, the demand vember 15, 1905. On the next day, which of the interest from the plaintiff, her inability was Thursday, he wrote to the appellee to to pay it, and the sale in consequence theremake some arrangement by the following of at a sum sufficient to pay the mortgage Saturday. That not being done, Mr. Urie debt, interest, and costs, that the defendant filed a bond on the next Monday and again made such false and fraudulent representanotified the appellee “that her farm would

tions well knowing them to be false and with be advertised unless she fixed up the mort intent to induce the plaintiff thereby to enter gage.” The mortgage provided for one-half into said written contract and to exchange commissions if paid after the bond was filed, said properties, and that the plaintiff, relyand $25 for preparing and furnishing the

ing upon said representations of the defendbond. The appellee failed to arrange for the ant, entered into the contract and did exmortgage, and Mr. Urie, as assignee, adver

change the properties. It also alleges that tised the property, and sold it the latter part

the plaintiff was induced to believe that no of December, 1905, to the appellant for $2, interest was due and none would be demand450. The appellant had sold the property he

ed on the mortgage until after the wheat harhad received from the appellee for $2,000 a vest in 1906, and hence she made no provi: few days after the transfer to him in May,

sion for it, and could not pay it. It con1905. He denied the statement about the in- cludes: "And that, by reason of the said terest, and claimed he had purchased and false and fraudulent representations of the paid for the crops with the $250 in part to

defendant, the plaintiff was deprived of the enable her to pay the interest, $120 of which ownership and possession of said house and would be due about August 1, 1905. He also lot of land, and that the plaintiff suffered testified that after he had purchased the damage thereby. And the plaintiff claims farm at the mortgagee's sale he offered it $4,000.” It will thus be seen that the damto the plaintiff at what he gave for it and ages claimed in the narr. are not for the loss offered to let half of the purchase money re of the farm, but for the loss of the house and main on the farm. Whichever version was in

lot, while the fraud alleged was in reference fact true, the net result was that the appel to the farm. If the allegations in the narr. lant had sold the property he had received are true, the plaintiff was not deprived of from the appellee for $2,000 a few days after the house and lot by the alleged fraud, but the transfer to him. He then obtained bis

she was, at most, only deprived of the equity farm (which he valued at $4,000 in the sale in the farm. It may be that the house and to the appellee) for $2,450, which paid off the lot were worth more than the latter, even if mortgage given by him, and he had only paid there was only due the principal of the mort$250 in cash to the appellee. His total loss gage, and it is difficult to understand upon could not exceed the $250, plus the difference what principle, under the allegations made between the amount of the mortgage with in the narr., she could have been entitled to interest hereon, and such taxes as were then recover for the loss of the house and lot, redue on the farm, and the $2,450. The appel

gardless of the question whether that could lee had received the $250, out of which she under proper allegations be the measure of had to pay the expenses of seeding the wheat damages, which we will refer to later. "The in the fall of 1905 (for which she received no declaration or complaint must allege that return) and such other expenses as she in plaintiff sustained damage by reason of the curred, and never did get possession of the fraud, and should show that the relation of entire farm which she had purchased. Mr. cause and effect exists between the fraud

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and the damage alleged.” 20 Cyc. 103, and damages are to be estimated Is, as a general cases cited in notes. It cannot properly be principle, a question of law to be decided by said that the loss of the house and lot was the court; that is to say, the court must de caused by the alleged fraud in reference to cide, and instruct the jury, in respect to what the interest on the mortgage, and the demur elements, and within what limits, damages rer ought to have been sustained.

may be estimated in the particular action." The plaintiff's first prayer, which was In Belt R. R. Co. v. Sattler, 102 Md. 595, 62 granted, is defective by reason of its failure Atl. 1125, 64 Atl. 507, the same principle was to instruct the jury as to the proper measure announced as it was in the late case of West. of damages. After reciting a number of facts Union Tel. Co. v. Lehman & Bro. (not yet which the plaintiff alleged in the narr. and officially reported) 66 Atl. 266, and in other undertook to establish by proof, it concludes: cases in this court. In Webster v. Woolford, “Then the plaintiff is entitled to recover in 81 Md. 329, 32 Atl. 319, which was an action this action such damages as the jury may of deceit alleged to have been practiced by find the plaintiff has sustained, as the direct the defendant in respect to his authority to consequence of such false representations, if, sell certain property, this court said: “The in fact, the plaintiff has sustained any loss, action, it is true, is in the nature of an acprovided the plaintiff could not have pre tion for tort, but it is a tort founded on a vented said loss by the exercise of ordinary breach of contract, and, there being no quescare and prudence." There is nothing in the tion as to exemplary damages, the rule as to case to have authorized the jury to find ex the measure of damages is the same as in emplary, or punitive damages. “In ordinary cases for breach of contract in regard to the cases the recovery of exemplary, punitive, sale of property.

We take the rule to or vindictive damages will not be allowed be that, when two parties make a contract for in an action of deceit; but such damages the sale of property which one of the parties may be allowed where the wrong involves has broken, the other party may recover such some violation of duty springing from a re damages as may fairly and reasonably be lation of trust or confidence, or where the considered; 1. e., according to the usual course fraud is gross, or the case presents other of business, to flow from the breach itself, or extraordinary or exceptional circumstances such as may reasonably be supposed to have clearly indicating malice and willfulness and been in the contemplation of both parties at calling for an extension of the doctrine.” the time they made the contract, as the prob20 Cyc. 142. This case as presented does not able result of the breach of it.” The court come within any of the exceptions named. It then quoted at some length from Hadley v. is not alleged or attempted to be proven Baxendale, 9 Exch. 341. There is nothing in that the defendant made the false representa the evider e in this case to show that the de tions in order to mislead the plaintiff, and fendant ce ud have had in contemplation, as thereby cause a default in the entire mort the result of interest being due before the gage in order that he might purchase the harvest of 1906, that the plaintiff would be property at a sacrifice, or anything to that unable to pay it, and the mortgagee would effect. If such facts had been alleged and assign the mortgage to some one who would proven, a different question might have aris demand payment of the principal and interen, but the mortgage was overdue for several est, and thereby cause a sacrifice of the years before the exchange of the properties, property or loss to the plaintiff. There was and the plaintiff did not claim that the de at most only $93.33 more interest due than fendant misrepresented that fact to her. So the plaintiff knew would be due, and, as the far as the record discloses, there were no record shows that the jury rendered a verdict representations excepting as to the interest, for $1,400, it can readily be seen how injuriand, even if the defendant and the mort. ous such an indefinite instruction as this was gagee had some understanding about the payment of the interest, it is not shown that It is true the prayer concluded by saying, it was of record or would have been binding “Provided the plaintiff could not have preon the assignee.

vented said loss by the exercise of ordinary The prayer wholly failed to instruct the care and prudence"; but the established facts jury as to the true measure of damages. were that, although notice of the interest be There was no limit to those the jury could ing due was given by the mortgagee on or assess, under the prayer, excepting of course before September 14, 1905, and the mortgage the amount claimed in the declaration. This was not assigned until November 15th, 1905, court has had occasion in a number of cases neither the plaintiff nor her husband called to disapprove of such instructions. In B. & upon the mortgagee to endeavor to arrange 0. R. R. Co. v. Carr, 71 Md. 135, 17 Atl. 1052, the interest or procure an extension of time, the judgment was reversed because the jury | and, what is even more remarkable, neither was instructed "that, if they found for the of them called upon the defendant to pay it plaintiff for the refusal to pass him through or even inquired of him whether it was due the gate, then he was entitled to such dam until Mr. Urie was about to foreclose the ages as they might find would, under all the mortgage. The plaintiff's husband worked circumstances, compensate him for such re for the defendant, yet he never mentioned fusal.” The court said: "The rule by which to him the interest or the fact that they had

may be.

received notice that the interest was due. fullness and might have misled the jury as These facts were proven by the plaintif's to her rigbt to recover even the $93.33. own witnesses (mainly by her and her hus It follows from what we have said that band), and it cannot be conceived how the the judgment must be reversed for error in jury could have disregarded the qualification not sustaining the demurrer to the declaraof the prayer above quoted unless they sup tion and in granting the plaintiff's first posed it only referred to her care and pru prayer. dence after the mortgage had been assigned, Judgment reversed and new trial awardand believed she was then unable to meet ed, the appellee to pay the costs. the principal and interest demanded. But, in the absence of some reason for not in

(106 Md. 147) forming the appellant that interest bad been demanded of her during the two months the

HOME OF THE AGED OF THE METAO

DIST EPISCOPAL CHURCH v. mortgagee held the mortgage, and demand

BANTZ. ing it of him, and in absence of all efforts to pay the interest in that time, she should not (Court of Appeals of Maryland. May 15, 1907.) have been permitted to recover more than 1. WILLS PROBATE REVOCATION JUthe interest that the defendant ought to have BISDICTION. paid, even if she could have otherwise done

Where a will altered by lines drawn through

clauses disposing of property to specified bene BO. Under the facts presented by the rec ficiaries was admitted to probate without conord she ought to have been limited in her test in the form in which it appeared as altered, recovery to the $93.33—that being the inter

one who had an interest in the estate of the

testator on the probate being revoked and a est on the mortgage from August 3, 1904, to

new one granted of the will in its original conthe date of the transfer-as there was noth dition was entitled to file, under Code Pub. Gen. ing alleged or proven to justify the recovery Laws 1904, art. 93, 88 318, 341, authorizing the of any greater sum. The prayers granted

filing of a petition praying for the re-examina

tion of the probate of a will without contest, for the defendant did not protect him from

etc., a caveat praying for the revocation of the the injurious effects of this prayer, and it probate and for the granting of the probate of should not have been granted.

the will in its original condition, though letters

of administration have been issued on the perThere was no reversible error in reject

sonal estate. ing the defendant's first prayer. The de (Ed. Note.--For cases in point, see Cent. Dig. fendant's fifth in McAleer v. Horsey, 35 Md. vol. 49, Wills, 88 532, 550, 551, 616.) 439, and the defendant's sixth in Robert 2. SAME. son y. Parks, 76 Md. 118, 24 Atl. 411, went as

One entitled to property passing under the

residuary clause of a will altered by lines drawn far in stating the legal presumption as to

through it, if admitted to probate in its original fraud, and upon whom the burden is in over condition, has such an interest in the estate of coming that presumption, as is ordinarily

the testator as authorizes him to file a caveat

for the revocation of the probate of the will as safe in this class of cases. As was said in

altered and for the granting of a probate of Lynn V. B. & O. R. R. Co. 60 Md. 417, 45 the will in its original condition. Am. Rep. 741: "Courts ought not to give (Ed. Note.-For cases in point, see Cent. Dig. mere legal abstractions as instructions to

vol. 49, Wills, 88 532, 550, 551, 616.) juries, but should state the law applicable

3. SAME-REVOCATION-INTENTION.

Where a testator drew lines through clausto the pleadings and facts of each case."

es making a disposition of his property, such This prayer not only embodies the substance portions of the will were not revoked unless of the one granted in McAleer v. Horsey

the testator intended so to do. and Robertson v. Parks, above referred to, (Ed. Note.-For cases in point, see Cent. Dig. but it concludes: "And, where a transac

vol. 49, Wills, 8 441.) tion which is challenged admits equally of

4. SAME-ISSUES.

Where the allegations of a caveat praying an honest or dishonest construction, it is

for the revocation of the probate of a will the duty of the jury to accept and adopt the as altered by lines drawn through clauses makconstruction in favor of honesty and fair

ing dispositions of testator's property and for

the granting of a probate of the will in its origdealings.” The plaintiff's testimony tended

inal condition present for determination the into show that the appellant did make the quiry whether the lines were put on the will by statement in reference to the interest on the the testator, and whether he thereby intended

to revoke such portions of it, and whether he mortgage, while the appellant positively de

posessed at the time testamentary capacity, the nied tbat he did. It was not a question of caveat presented questions relating to the makconstruction of what he meant by what he ing of the will within the jurisdiction of the did say, but simply whether he did say

orphans' court, having exclusive jurisdiction of

granting or refusing the probate of wills. what the plaintiff claims he said; for,

5. SAME. if he did, there being no attempted explana. A will was admitted to probate as altered tion of its meaning, there was no question by lines drawn through clauses making disposias to whether it admitted “of an honest or

tion of property to a residuary legatee. The dishonest construction," and hence that part

residuary legatee appeared and answered in a

suit in the circuit court for the appointment of of the prayer did not apply to the facts. a new trustee and the administration of the The theory of the defendant's fourth

trusts of the will under the supervision of that

court. The trusts of the will related to the lite prayer, as we understand it, was correct, but

estate of testator's widow, and the portions of the facts were not stated with sufficient the will creating such trusts were not assailed

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by the caveat filed by the residuary legatee fine him in an asylum, and that for many praying for the revocation of the probate of the

years before his confinement in the asylum will and for the granting of a probate of the will in its original condition. Held, that the ap

he was not capable of making or revoking pearance and answer of the residuary legatee a will, and that, if the lines drawn through in the circuit court did not estop it from prose and across certain words of the will were cuting the caveat.

put there by him or by his direction, they 6. SAME--JUDGMENT. Where proceedings on

can have no effect as a revocation of any

a caveat for the revocation of the probate of the will as altered

of the provisions of the will. The prayer and for the granting of a probate of the will of the caveat was for a revocation of the in its original condition resulted in a revocation of the probate and the granting of a new one,

order admitting the will to probate in comthe courts should protect the acts of the admin

mon form and for its admission to probate istrator done in due course under the letters without the lines already referred to as apof administration c. t. a. granted on the will as pearing upon its face. originally probated.

The will in question, omitting its formal Appeal from Orpbans' Court of Baltimore opening and conclusion, is as follows: "AftCity.

er the payment of all my just debts and fuCaveat by the Home of the Aged of the neral expenses I give, devise and bequeath all Methodist Episcopal Church against Sallie my estate and property real and personal C. Bantz, administratrix c. t. a. of Theodore wherever the same may be unto Joshua T. S. Bantz, deceased, to revoke the probate Young my brother Edward Bantz M. D, and of a will as altered, and for its admission to Frederick Leist and the survivors or surprobate as originally executed. From an vivor of them in trust and confidence to hold order dismissing the caveat, plaintiff ap the same for the term of my wife's Sallie peals. Reversed and remanded.

C. Bantz life, and after paying the taxes and Argued before BRISCOE, BOYD, PEARCE, necessary expenses thereon, to pay her out SCHMUCKER, BURKE, and ROGERS, JJ. of the net income of my estate the sum of John Philip Hill, for appellant. Wm. Pink

one thousand and ninety-five dollars per year ney Whyte, for appellee.

during her natural life in quarterly instal

ments of two hundred and seventy-three dolSCHMUCKER, J. This appeal is from an lars and seventy-five cents each, and the order of the orphans' court of Baltimore city remainder of the income to be invested by dismissing a caveat filed by the appellant to them and held for the purpose of making the last will of Theodore S. Bantz. The will good any deficiency of the income to my wife was admitted to probate in common form Sallie C. Bantz so that she will receive one without contest on June 15, 1904, and the thousand and ninety-five dollars for every caveat was filed on September 21, 1906, with year during her natural life; and at the in the three years allowed by section 33 of death of my wife Sallie C. Bantz said trust article 93 of the Code of 1904 for filing ca sball cease, and the property No. 721 West veats to wills. Upon the face of the will, as Lexington street and No. 202 Myrtle avenue admitted to probate, there appear lines drawn shall go to my brother Edward Bantz absothrough and across certain words, but in lutely, five thousand dollars shall go to such manner as not to obliterate them or Charles C. Bowman nephew of my first wife render them illegible. The caveat, after al Cecelia Bantz, and four thousand dollars leging the death of the testator, leaving sur shall go to, in equal shares to Thomas Bouviving him a widow, but no children or de man Smith and Cecelia Bantz Smith children scendants, states who constitute his heirs at of George P. Smith and his wife Mary C. law and next of kin. It then avers the pro Smith, and the rest and residue and remainbate of the will in common form with the der of my estate shall go to the Home for lines above mentioned appearing upon its the Aged of the Methodist Episcopal Church, face, and asserts that at the time of its located at the southwest corner of Fulton execution on September 22, 1892, it did not avenue and Franklin street for the purpose contain those lines, and that they are not of a domitory to be known as Cecelia Bantz part of the will, and should be eliminated in domitory." A clause follows granting to the its probate. The caveat further avers that trustees certain powers for the management the will at the time of its execution was plac-of the estate, after which the will proceeds to ed in the hands of Frederick Leist, Esq., who say: "I constitute and appoint Joshua T. was the testator's counsel and was named as Young Edward Bantz and Frederick Leist one of the executors in the will, and that he to be the executors of this my last will and retained custody of it until his death in 1901, testament (my brother Edward Bantz not to when it came into the possession of the tes receive commissions as trustee and executor tator for the first time after its execution. as the provision made for him is to be in lieu The caveat then alleges that, although the thereof) hereby revoking all other wills and testator was in the full possession of testa codicils by me heretofore made.” The words mentary capacity when he made his will on here appearing in italics are the ones over September 22, 1892, he began about No which the lines referred to were drawn in vember, 1898, to show symptoms of insanity, the will. which developed to such an extent that it be All of the persons named as trustees and came necessary on November 23, 1902, to con executors in the will having died during the

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