not have personal knowledge of the defect in the bridge, they were not liable, and it might have been so arged 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.

(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 have 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

ligated to pay and which defendant represented was not due.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Fraud, §§ 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.

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 furthermore understood that 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 payment 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 the improvements for

the benefit of the mortgagee. At the time the agreement was made, and when the deeds were delivered, interest was unpaid on the mortgage from August 3, 1904, and on August 30, 1905, the insurance policy, which had been taken out for three years, expired. The foundation of this suit is that the appellee contends that the appellant falsely and fraudulently represented to her that all arrears of interest had been paid to the date of the contract; that the mortgage debt bore interest only from that date, and that no interest would be demanded or required to be paid by her until after wheat harvest in 1906; that defendant knew the representations to be false, and made them with the intent to induce her to enter into the contract and exchange the properties, which she did, relying upon the representations. Shortly after the year's interest became due (in August, 1905) it was demanded of the appellee, but she did not pay it, and the mortgagee assigned the mortgage to John G. Urie on November 15, 1905. On the next day, which was Thursday, he wrote to the appellee to make some arrangement by the following Saturday. That not being done, Mr. Urie filed a bond on the next Monday and again notified the appellee "that her farm would be advertised unless she fixed up the mortgage." The mortgage provided for one-half commissions if paid after the bond was filed, and $25 for preparing and furnishing the bond. The appellee failed to arrange for the mortgage, and Mr. Urie, as assignee, advertised the property, and sold it the latter part of December, 1905, to the appellant for $2,450. The appellant had sold the property he had received from the appellee for $2,000 a few days after the transfer to him in May, 1905. He denied the statement about the interest, and claimed he had purchased and paid for the crops with the $250 in part to enable her to pay the interest, $120 of which would be due about August 1, 1905. He also testified that after he had purchased the farm at the mortgagee's sale he offered it to the plaintiff at what he gave for it and offered to let half of the purchase money remain on the farm. Whichever version was in fact true, the net result was that the appellant had sold the property he had received from the appellee for $2,000 a few days after the transfer to him. He then obtained his farm (which he valued at $4,000 in the sale to the appellee) for $2,450, which paid off the mortgage given by him, and he had only paid $250 in cash to the appellee. His total loss could not exceed the $250, plus the difference between the amount of the mortgage with interest hereon, and such taxes as were then due on the farm, and the $2,450. The appellee had received the $250, out of which she had to pay the expenses of seeding the wheat in the fall of 1905 (for which she received no return) and such other expenses as she incurred, and never did get possession of the entire farm which she had purchased. Mr.

Urie, the appellant's attorney, who drew the agreement but made no reference to the interest on the mortgage, sold the property under the mortgage within six weeks of the time it was assigned to him, and will receive the difference between what he paid for the. mortgage ($2,154), plus expenses of sale, and the purchase price ($2,450). Without further comment on the facts, it is not surprising that a jury rendered a verdict for a substantial sum; but, whatever we may think of such transactions, it is, of course, our duty to determine the case according to the established principles of law without regard to results, if not within the protection of those principles. The questions before us are presented by a demurrer to the narr. and exceptions to granting the plaintiff's prayer and rejecting the first and fourth prayers offered by the defendant.

The declaration alleges the exchange of the properties, the false and fraudulent representations as to the interest, the demand of the interest from the plaintiff, her inability to pay it, and the sale in consequence thereof at a sum sufficient to pay the mortgage debt, interest, and costs, that the defendant made such false and fraudulent representations well knowing them to be false and with intent to induce the plaintiff thereby to enter into said written contract and to exchange said properties, and that the plaintiff, relying upon said representations of the defendant, entered into the contract and did exchange the properties. It also alleges that the plaintiff was induced to believe that no interest was due and none would be demanded on the mortgage until after the wheat harvest in 1906, and hence she made no provision for it, and could not pay it. It concludes: "And that, by reason of the said false and fraudulent representations of the defendant, the plaintiff was deprived of the ownership and possession of said house and lot of land, and that the plaintiff suffered damage thereby. And the plaintiff claims $4,000." It will thus be seen that the damages claimed in the narr. are not for the loss of the farm, but for the loss of the house and lot, while the fraud alleged was in reference to the farm. If the allegations in the narr. are true, the plaintiff was not deprived of the house and lot by the alleged fraud, but she was, at most, only deprived of the equity in the farm. It may be that the house and lot were worth more than the latter, even if there was only due the principal of the mortgage, and it is difficult to understand upon what principle, under the allegations made in the narr., she could have been entitled to recover for the loss of the house and lot, regardless of the question whether that could under proper allegations be the measure of damages, which we will refer to later. "The declaration or complaint must allege that plaintiff sustained damage by reason of the fraud, and should show that the relation of cause and effect exists between the fraud

and the damage alleged." 20 Cyc. 103, and cases cited in notes. It cannot properly be Isaid that the loss of the house and lot was caused by the alleged fraud in reference to the interest on the mortgage, and the demurrer ought to have been sustained.

The plaintiff's first prayer, which was granted, is defective by reason of its failure to instruct the jury as to the proper measure of damages. After reciting a number of facts which the plaintiff alleged in the narr. and undertook to establish by proof, it concludes: "Then the plaintiff is entitled to recover in this action such damages as the jury may find the plaintiff has sustained, as the direct consequence of such false representations, if, in fact, the plaintiff has sustained any loss, provided the plaintiff could not have prevented said loss by the exercise of ordinary care and prudence." There is nothing in the case to have authorized the jury to find exemplary, or punitive damages. "In ordinary cases the recovery of exemplary, punitive, or vindictive damages will not be allowed in an action of deceit; but such damages may be allowed where the wrong involves some violation of duty springing from a relation of trust or confidence, or where the fraud is gross, or the case presents other extraordinary or exceptional circumstances clearly indicating malice and willfulness and calling for an extension of the doctrine." 20 Cyc. 142. This case as presented does not come within any of the exceptions named. It is 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 in order that he might purchase the property at a sacrifice, or anything to that effect. If such facts had been alleged and proven, a different question might have arisen, but the mortgage was overdue for several years before the exchange of the properties, and the plaintiff did not claim that the defendant misrepresented that fact to her. So far as the record discloses, there were no representations excepting as to the interest, and, even if the defendant and the mortgagee had some understanding about the payment of the interest, it is not shown that it was of record or would have been binding on the assignee.

The prayer wholly failed to instruct the jury as to the true measure of damages. There was no limit to those the jury could assess, under the prayer, excepting of course the amount claimed in the declaration. This court has had occasion in a number of cases to disapprove of such instructions. In B. & O. R. R. Co. v. Carr, 71 Md. 135, 17 Atl. 1052, the judgment was reversed because the jury was instructed "that, if they found for the plaintiff for the refusal to pass him through the gate, then he was entitled to such damages as they might find would, under all the circumstances, compensate him for such refusal." The court said: "The rule by which

damages are to be estimated is, as a general principle, a question of law to be decided by the court; that is to say, the court must decide, and instruct the jury, in respect to what elements, and within what limits, damages may be estimated in the particular action." In Belt R. R. Co. v. Sattler, 102 Md. 595, 62 Atl. 1125, 64 Atl. 507, the same principle was announced as it was in the late case of West. Union Tel. Co. v. Lehman & Bro. (not yet officially reported) 66 Atl. 266, and in other cases in this court. In Webster v. Woolford, 81 Md. 329, 32 Atl. 319, which was an action of deceit alleged to have been practiced by the defendant in respect to his authority to sell certain property, this court said: "The action, it is true, is in the nature of an action for tort, but it is a tort founded on a breach of contract, and, there being no question as to exemplary damages, the rule as to the measure of damages is the same as in cases for breach of contract in regard to the sale of property. * We take the rule to

be that, when two parties make a contract for the sale of property which one of the parties has broken, the other party may recover such damages as may fairly and reasonably be considered; i. e., according to the usual course of business, to flow from the breach itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the prob. able result of the breach of it." The court then quoted at some length from Hadley v. Baxendale, 9 Exch. 341. There is nothing in the evidere in this case to show that the defendant cld have had in contemplation, as the result of interest being due before the harvest of 1906, that the plaintiff would be unable to pay it, and the mortgagee would assign the mortgage to some one who would demand payment of the principal and interest, and thereby cause a sacrifice of the property or loss to the plaintiff. There was at most only $93.33 more interest due than the plaintiff knew would be due, and, as the record shows that the jury rendered a verdict for $1,400, it can readily be seen how injurious such an indefinite instruction as this was may be.

It is true the prayer concluded by saying, "Provided the plaintiff could not have prevented said loss by the exercise of ordinary care and prudence"; but the established facts were that, although notice of the interest being due was given by the mortgagee on or before September 14, 1905, and the mortgage was not assigned until November 15th, 1905, neither the plaintiff nor her husband called upon the mortgagee to endeavor to arrange the interest or procure an extension of time, and, what is even more remarkable, neither of them called upon the defendant to pay it or even inquired of him whether it was due until Mr. Urie was about to foreclose the mortgage. The plaintiff's husband worked for the defendant, yet he never mentioned to him the interest or the fact that they had

received notice that the interest was due. These facts were proven by the plaintiff's own witnesses (mainly by her and her husband), and it cannot be conceived how the jury could have disregarded the qualification of the prayer above quoted unless they supposed it only referred to her care and prudence after the mortgage had been assigned, and believed she was then unable to meet the principal and interest demanded. But, in the absence of some reason for not informing the appellant that interest had been demanded of her during the two months the mortgagee held the mortgage, and demanding it of him, and in absence of all efforts to pay the interest in that time, she should not have been permitted to recover more than the interest that the defendant ought to have paid, even if she could have otherwise done SO. Under the facts presented by the record she ought to have been limited in her recovery to the $93.33-that being the interest on the mortgage from August 3, 1904, to the date of the transfer-as there was nothing alleged or proven to justify the recovery of any greater sum. The prayers granted for the defendant did not protect him from the injurious effects of this prayer, and it should not have been granted.

There was no reversible error in rejecting the defendant's first prayer. The defendant's fifth in McAleer v. Horsey, 35 Md. 439, and the defendant's sixth in Robertson v. Parks, 76 Md. 118, 24 Atl. 411, went as far in stating the legal presumption as to fraud, and upon whom the burden is in overcoming that presumption, as is ordinarily safe in this class of cases. As was said in Lynn v. B. & O. R. R. Co. 60 Md. 417, 45 Am. Rep. 741: "Courts ought not to give mere legal abstractions as instructions to juries, but should state the law applicable to the pleadings and facts of each case.' This prayer not only embodies the substance of the one granted in McAleer v. Horsey and Robertson v. Parks, above referred to, but it concludes: "And, where a transac tion which is challenged admits equally of an honest or dishonest construction, it is the duty of the jury to accept and adopt the construction in favor of honesty and fair dealings." The plaintiff's testimony tended to show that the appellant did make the statement in reference to the interest on the mortgage, while the appellant positively denied that he did. It was not a question of construction of what he meant by what he did say, but simply whether he did say what the plaintiff claims he said; for, if he did, there being no attempted explanation of its meaning, there was no question as to whether it admitted "of an honest or dishonest construction," and hence that part of the prayer did not apply to the facts. The theory of the defendant's fourth prayer, as we understand it, was correct, but the facts were not stated with sufficient

fullness and might have misled the jury as to her right to recover even the $93.33.

It follows from what we have said that the judgment must be reversed for error in not sustaining the demurrer to the declaration and in granting the plaintiff's first prayer.

Judgment reversed and new trial awarded, the appellee to pay the costs.

(106 Md. 147) HOME OF THE AGED OF THE METHO DIST EPISCOPAL CHURCH v.

BANTZ.

(Court of Appeals of Maryland. May 15, 1907.) 1. WILLS PROBATE REVOCATION JuBISDICTION.

Where a will altered by lines drawn through clauses disposing of property to specified beneficiaries was admitted to probate without contest in the form in which it appeared as altered, one who had an interest in the estate of the testator on the probate being revoked and a new one granted of the will in its original condition was entitled to file, under Code Pub. Gen. Laws 1904, art. 93, §§ 318, 341, authorizing the filing of a petition praying for the re-examination of the probate of a will without contest, etc., a caveat praying for the revocation of the probate and for the granting of the probate of the will in its original condition, though letters of administration have been issued on the personal estate.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 532, 550, 551, 616.] 2. SAME.

One entitled to property passing under the residuary clause of a will altered by lines drawn through it, if admitted to probate in its original condition, has such an interest in the estate of the testator as authorizes him to file a caveat for the revocation of the probate of the will as altered and for the granting of a probate of the will in its original condition.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 532, 550, 551, 616.] 3. SAME-REVOCATION-INTENTION.

Where a testator drew lines through clauses making a disposition of his property, such portions of the will were not revoked unless the testator intended so to do.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, § 441.] 4. SAME-ISSUES.

Where the allegations of a caveat praying for the revocation of the probate of a will as altered by lines drawn through clauses making dispositions of testator's property and for the granting of a probate of the will in its original condition present for determination the inquiry whether the lines were put on the will by the testator, and whether he thereby intended to revoke such portions of it, and whether he posessed at the time testamentary capacity, the caveat presented questions relating to the making of the will within the jurisdiction of the orphans' court, having exclusive jurisdiction of granting or refusing the probate of wills. 5. SAME.

A will was admitted to probate as altered by lines drawn through clauses making disposition of property to a residuary legatee. The residuary legatee appeared and answered in a suit in the circuit court for the appointment of a new trustee and the administration of the trusts of the will under the supervision of that court. The trusts of the will related to the life estate of testator's widow, and the portions of the will creating such trusts were not assailed

by the caveat filed by the residuary legatee praying for the revocation of the probate of the will and for the granting of a probate of the will in its original condition. Held, that the appearance and answer of the residuary legatee in the circuit court did not estop it from prosecuting the caveat.

6. SAME-JUDGMENT.

Where proceedings on a caveat for the revocation of the probate of the will as altered and for the granting of a probate of the will in its original condition resulted in a revocation of the probate and the granting of a new one, the courts should protect the acts of the administrator done in due course under the letters of administration c. t. a. granted on the will as originally probated.

Appeal from Orphans' Court of Baltimore City.

Caveat by the Home of the Aged of the Methodist Episcopal Church against Sallie C. Bantz, administratrix c. t. a. of Theodore S. Bantz, deceased, to revoke the probate of a will as altered, and for its admission to probate as originally executed. From an order dismissing the caveat, plaintiff appeals. Reversed and remanded.

Argued before BRISCOE, BOYD, PEARCE, SCHMUCKER, BURKE, and ROGERS, JJ. John Philip Hill, for appellant. Wm. Pinkney Whyte, for appellee.

SCHMUCKER, J. This appeal is from an order of the orphans' court of Baltimore city dismissing a caveat filed by the appellant to the last will of Theodore S. Bantz. The will was admitted to probate in common form without contest on June 15, 1904, and the caveat was filed on September 21, 1906, within the three years allowed by section 33 of article 93 of the Code of 1904 for filing caveats to wills. Upon the face of the will, as admitted to probate, there appear lines drawn through and across certain words, but in such manner as not to obliterate them or render them illegible. The caveat, after alleging the death of the testator, leaving surviving him a widow, but no children or de scendants, states who constitute his heirs at law and next of kin. It then avers the probate of the will in common form with the lines above mentioned appearing upon its face, and asserts that at the time of its execution on September 22, 1892, it did not contain those lines, and that they are not part of the will, and should be eliminated in its probate. The caveat further avers that the will at the time of its execution was placed in the hands of Frederick Leist, Esq., who was the testator's counsel and was named as one of the executors in the will, and that he retained custody of it until his death in 1901, when it came into the possession of the testator for the first time after its execution. The caveat then alleges that, although the testator was in the full possession of testamentary capacity when he made his will on September 22, 1892, he began about November, 1898, to show symptoms of insanity, which developed to such an extent that it became necessary on November 23, 1902, to con

fine him in an asylum, and that for many years before his confinement in the asylum he was not capable of making or revoking a will, and that, if the lines drawn through and across certain words of the will were put there by him or by his direction, they can have no effect as a revocation of any of the provisions of the will. The prayer of the caveat was for a revocation of the order admitting the will to probate in common form and for its admission to probate without the lines already referred to as appearing upon its face.

The will in question, omitting its formal opening and conclusion, is as follows: “After the payment of all my just debts and funeral expenses I give, devise and bequeath all my estate and property real and personal wherever the same may be unto Joshua T. Young my brother Edward Bantz M. D. and Frederick Leist and the survivors or survivor of them in trust and confidence to hold the same for the term of my wife's Sallie C. Bantz life, and after paying the taxes and necessary expenses thereon, to pay her out of the net income of my estate the sum of one thousand and ninety-five dollars per year during her natural life in quarterly instalments of two hundred and seventy-three dollars and seventy-five cents each, and the remainder of the income to be invested by them and held for the purpose of making good any deficiency of the income to my wife Sallie C. Bantz so that she will receive one thousand and ninety-five dollars for every year during her natural life; and at the death of my wife Sallie C. Bantz said trust shall cease, and the property No. 721 West Lexington street and No. 202 Myrtle avenue shall go to my brother Edward Bantz absolutely, five thousand dollars shall go to Charles C. Bowman nephew of my first wife Cecelia Bantz, and four thousand dollars shall go to, in equal shares to Thomas Bowman Smith and Cecelia Bantz Smith children of George P. Smith and his wife Mary C. Smith, and the rest and residue and remainder of my estate shall go to the Home for the Aged of the Methodist Episcopal Church, located at the southwest corner of Fulton avenue and Franklin street for the purpose of a domitory to be known as Cecelia Bantz domitory." A clause follows granting to the trustees certain powers for the management of the estate, after which the will proceeds to say: "I constitute and appoint Joshua T. Young Edward Bantz and Frederick Leist to be the executors of this my last will and testament (my brother Edward Bantz not to receive commissions as trustee and executor as the provision made for him is to be in lieu thereof) hereby revoking all other wills and codicils by me heretofore made." The words here appearing in italics are the ones over which the lines referred to were drawn in the will.

All of the persons named as trustees and executors in the will having died during the