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evidence in the case there was no legally counsel for the plaintiff to read to the jury, sufficient evidence to entitle the plaintiff to in connection with the depositions of the recover. The questions presented by these witness Tomlinson, taken in Jersey City, N. exceptions will now be considered by us in J., on the 27th of February, 1908, under a their regular order. The suit was institut- commission, before a notary public of the ed, as stated by the bill of particulars filed state of New Jersey, a tabulated statement by the plaintiff, for the purpose of recover- called "Boston Cars," under the column ing damages for the loss of strawberries headed "Passed Gray's Ferry," and under shipped from Pittsville, Wicomico county, the column arrived “J. City," for the purpose Md., to Seaverns & Co., commission mer- of showing the time that the cars arrived at chants, at Boston, Mass., from May 6, 1903, and passed Gray's Ferry at Philadelphia and to June 1, 1903, over and by way of the their arrival at Jersey City. It appears upconnecting lines and railroad of the defend- on the taking of the depositions of the witant and not transported and delivered withness Tomlinson in Jersey City (which were due dispatch by the defendant. The straw- read to the jury without objection), the witberries were delivered and received on the ness had a memorandum headed "Boston days stated by the Baltimore, Chesapeake & Cars" with the first or left-hand column Atlantic Railway Company, the initial car-headed "Car Initial Number," and the right rier, at its station, Pittsville, Wicomico coun- hand column headed, "Time Floated," and ty, to be carried to their point of destina- the witness here testified that the initials tion, Boston, Mass. They were consigned and car numbers noted in the column headand waybilled over the following railroads: From Pittsville to Salisbury, a distance of 10 miles, by the Baltimore, Chesapeake & Atlantic Railway; from Salisbury to Delmar, a distance of 6 miles, over the New York, Philadelphia & Norfolk Railroad; from Delmar to Philadelphia, a distance of 120 miles by the Delmar Division of the Philadelphia, Baltimore & Washington Railroad; from Philadelphia to Jersey City, a distance of 90 miles, over the defendant's road, an intermediate carrier, known as the New York Division of the Pennsylvania Railroad; and from the last-named point to Boston, over the New York, New Haven & Hartford Railroad, the terminal carrier. The declaration in this case alleges that the defendant (an intermediate connecting carrier) did not transport the strawberries over its road with reasonable dispatch, as it was in duty bound to do, and, by reason of this failure on its part, the strawberries reached their point of destination too late for the market of the day for which they were shipped, and were received in a damaged condition, whereby the plaintiff sustained a heavy loss. The trial resulted in a verdict for the defendant, and, the case being here upon the plaintiff's exceptions, we will now proceed to consider them.

The first exception relates to the rulings of the court in excluding the testimony of the witness Davis as to the customary usage for the transportation and time of arrival of "the Boston train" for the early morning market for berries. It appears, however, that the witnesses Loring and Morrison, subsequently in the course of the trial, upon the offer of the plaintiff, testified as to the time of the arrival of the strawberry trains, so the plaintiff had full benefit of the excluded evidence of the witness Davis, and could not have been injured by this ruling, assuming the court below committed an error in so ruling.

The second exception was taken to the

ed "Car Initial Number" and the figures at the right-hand column under the words "Time Floated" are the car numbers and the times that the said cars were delivered to the floats of the New York, New Haven & Hartford Railroad. Thereupon the following agreement was had by the counsel for the parties as to the use of the memorandum at the trial of the case: "It is stipulated and agreed between the plaintiff and defendant that the plaintiff may offer in evidence at the trial of this cause the first or left-hand column, headed 'Car Initial Number,' and the right-hand column headed Time Floated,' and that the offer will not be objected to on the ground that the same is not the original or primary evidence, and shall have the same effect as if the same were so offered as the primary proof, and that the defendant may offer at the trial of the cause any other data appearing upon the memorandum consisting of two sheets and marked 'Boston Consignments,' and no objection to such offer will be made on the ground that the memorandum is not primary evidence; the plaintiff and defendant reserving objections as to the materiality of the said testimony." It will be thus seen that the copy of the memorandum offered to be read, called the tabulated statement of "Boston Cars"-that is, the columns headed "Passed Gray's Ferry" and "Arrived J. City”—was not included in the stipulation between the parties, to be used as evidence by the plaintiff at the trial of the case, and, not being the original record, was properly rejected by the court. The plaintiff had the benefit of the depositions of the witness, both his examination in chief and on cross-examination, and the defendant was not required to offer its evidence until the close of the plaintiff's case. We find no reversible error in the ruling of the court embraced in this exception.

The principal question, however, on the appeal, arises under the third exception, and that is whether the court committed an er

or of more significant facts or specification than the fact of acceptance as the basis of an implied contract, the initial carrier is discharged by carrying safely to the end of its line and there delivering to the next car

were due to leave Pittsville at about 5:30 p. m., but there is no evidence whatever that the train left on time or the hour of the day at which the cars actually left the starting point. The witness Hickey, agent at Delmar of the New York, Philadelphia & Norfolk Railroad and of the Philadelphia, Baltimore & Washington Railroad, testified as to the time of the arrival of the cars at Delmar, a distance of only 16 miles from Pittsville, and stated they arrived at different hours, from 8:30 p. m. to 12:52 p. m.

withdrew the case from the jury. Accord-rected to a point off the carrier's line is not ing to the evidence, the defendant company a sufficient basis for the implication of a was an intermediate connecting carrier, its contract for extra terminal liability, and road beginning at Gray's Ferry, Philadelphia, that, in the absence of an express contract and ending at Jersey City, N. J. Freight shipped from Pittsville to Boston would have to pass over the roads of three other companies the Baltimore, Chesapeake & Atlantic Railway Company from Pittsville to Salisbury, the New York, Philadelphia & Nor-rier." folk from Salisbury to Delmar; and the There was no contract in this case for exPhiladelphia, Baltimore & Washington to tra terminal liability or any facts upon which Gray's Ferry-before reaching the defendant's such a contract could be based, so it is clear road, and then, before reaching Boston, the the defendant company would be liable only point of destination, would have to pass over for delays occurring on its own route which the New York, New Haven & Hartford Rail- could have been avoided by the exercise of road, the delivering carrier. The grievance reasonable diligence in delivering the freight complained of by the plaintiff and the sub- to the next connecting carrier. According stantial cause of the action was the negli- to the evidence in the case, the freight was gence of the defendant company a connecting delivered to the initial carrier, the Balticarrier to deliver with reasonable dispatch more, Chesapeake & Atlantic Railway, at or on time the freight mentioned in the dec-its station at Pittsville, in good condition, on laration, and in consequence of this failure the day it was to be shipped, and the cars they did not reach the point of destination in time for the market of the day for which they were shipped. Under the facts of the case now before us there were five different railroads over which the freight in question had to be carried from Pittsville, Md., the initial point, to Boston, Mass., the point of destination, and the liability of the defendant company as one of the intermediate connecting carriers was confined to the limits of its own road. In other words, it was in duty bound to safely carry with reasonable dispatch over its own road and to safely and There is also an absence of evidence as to promptly deliver without unnecessary de- the time when the cars left Pittsville, Dellay and detention to the next connecting car-mar, Salisbury, and Gray's Ferry, or what rier. The law in this regard has been set- would be a reasonable time to be consumed tled in this state by numerous decisions and in the transportation of the freight over the by the Supreme Court of the United States. several roads. There is no evidence whatP. W. B. R. R. Co. v. Lehman, 56 Md. 233, 40 ever as to the time when the freight was reAm. Rep. 415; Hoffman v. Cumberland R. R. ceived upon the defendants' road or when it Co., 85 Md. 394, 37 Atl. 214; B. & O. R. R. was delivered to the next carrier, and it is Co. v. Whitehill, 104 Md. 314, 64 Atl. 1033; therefore difficult to see upon what ground it Orem Fruit Co. v. N. C. Ry. Co., 106 Md. can be asserted that the delay in the trans16, 66 Atl. 436. In Myrick v. Railroad Co., portation of the freight was solely due to the 107 U. S. 107, 1 Sup. Ct. 425, 27 L. Ed. 325, defendant's negligence. The burden of proof it was held: "Each road confining itself to was upon the plaintiff to show that the deits common-law liability is only bound in lay occurred upon the defendant's road, and, the absence of a special contract to safely failing, in this, the court below committed no carry over its own route and safely to deliv- error in granting the defendant's prayer, er to the next connecting carrier, but any which instructed the jury that upon the one of the companies may agree that over the pleading and evidence there was no legally whole route its liability shall extend. In the sufficient evidence to entitle the plaintiff to absence of a special agreement to that ef- recover. In this case there was no evidence fect, such liability will not attach, and the showing when or where the delay was in fact agreement will not be inferred from doubt- caused, and, there being no presumption that ful expressions or loose language, but only it happened upon the line of the defendant from clear and satisfactory evidence." And company, an intermediate carrier, there in Elliott on Railroads, § 1435, it is said: could be no recovery against the defendant. "The majority of our courts have held, in accordance with what is called the ‘American rule,' that the mere acceptance of goods di

There being no error in the rulings of the court, the judgment will be affirmed. Judgment affirmed, with costs.

(108 Md. 678)

TURPIN et al. v. MILES.

(Court of Appeals of Maryland. Nov. 12, 1908.) 1. TRUSTS (§ 72*)-RESULTING TRUSTS-PAYMENT OF PURCHASE PRICE FOR ANOTHER.

A resulting trust arises in favor of one paying the purchase price of land, the deed to which is taken in the name of another.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 102; Dec. Dig. § 72.*]

2. Trusts_(§ 88*)—CONSTRUCTIVE TRUST-EVI

DENCE-PAROL EVIDENCE.

The payment of the purchase price of land, the deed to which is taken in another's name, can be shown by parol in order to establish a resulting trust in favor of the payor.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. $ 130-133; Dec. Dig. § 88.*] 3. TRUSTS (§ 89*)-CONSTRUCTIVE TRUST-EVI

DENCE-SUFFICIENCY.

The proof to establish a resulting trust in land by showing payment of the purchase price must be clear and positive.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 134-137; Dec. Dig. § 89.*]

4. TRUSTS (§ 359*)-ESTABLISHMENT-ACTIONS -FORM OF REMEDY-RESULTING TRUST.

One claiming a resulting trust in land by payment of a part of the purchase price cannot establish it upon exceptions to its sale by the trustee for benefit of creditors of the holder of the legal title, but an independent suit is neces

sary.

[Ed. Note. For other cases, see Trusts, Cent. Dig. 554; Dec. Dig. § 359.*]

5. TRUSTS (§ 203*)-RESULTING TRUST-SALE BY TRUSTEE-TITLE PASSING.

A resulting trust in land was not affected by the sale of the land by the trustee for benefit of creditors of the legal owner where only the interest of the legal owner was sold.

[Ed. Note.-For other cases, see Trusts, Dec. Dig. § 203.*]

Appeal from Circuit Cout, Wicomico County; Henry Lloyd, Judge.

Proceedings to sell land for the benefit of creditors by Alonzo L. Miles, trustee, against John W. Turpin and H. Gale Turpin. From a final order ratifying the sale and overruling the objections thereto of H. Gale Turpin, he appealed. Affirmed.

deed for the property. The deed recites that the entire property known as the "Ben Truitt Farm," containing 350 acres of land, more or less, was sold by him to John W. Turpin for the sum of $2,955, and that the purchase money had been fully paid. On the same day John W. Turpin executed a mortgage covering the whole farm to James C. Dirickson to secure the sum of $1,500, which was applied as part payment of the purchase money. The mortgage recites that the land therein conveyed was the Ben Truitt farm, and was the same land which was conveyed to Turpin by E. Stanley Toadvine, trustee, by deed of even date. Turpin took possession of the farm under the deed, and remained in the undisturbed and continuous possession or control of the same until the 28th of August, 1900, when, being financially embarrassed, he executed and delivered on that day a deed of trust for the benefit of his

creditors to Alonzo L. Miles of all his estate and property of every nature, kind, and description. Mr. Miles accepted the trust created by the deed, filed an approved bond as trustee, and upon his petition the court assumed jurisdiction over the administration of the trust. On the 19th of January, 1901, the trustee sold a portion of the Ben Truitt farm, containing 186 acres, to William K. Leatherbury and Daniel J. Elliott; and another portion to L. Earnest Williams and John D. Williams, trading as L. E. Williams & Co., and reported these sales to the court for its ratification. The first report of sale was made on the 18th of April, 1901, and the second on July 6, 1901. H. Gale Turpin on May 31, 1901, filed exceptions to the ratification of the first sale reported upon the ground that he was the joint owner with John Wesley Turpin, as tenants in common, of the property so sold, and that the trustee, with a knowledge of this fact, sold the property as the property of John Wesley Turpin, selling all of the property, instead of the undivided half interest of John W. Turpin therein. He did not except to the second report of sale; sale. On the 9th of July, 1901, the purchasnor did John W. Turpin except to either ers filed exceptions to both sales, in which they alleged that they purchased the land in good faith and in the belief that John W. Turpin was the sole owner thereof in fee; that since the purchase, they have been inBURKE, J. The record shows that E. formed that there is an apparent defect in Stanley Toadvine was appointed by decree the title in that it appears from the record of the circuit court for Wicomico county, of proceedings in the case of Truitt et al. passed in a chancery proceeding instituted v. Taylor et al. that E. Stanley Toadvine, in that court, to sell certain real estate. He trustee, reported the property as sold to sold the property and reported the sale as John Wesley Turpin and H. Gale Turpin, and. having been made to John W. Turpin and subsequently conveyed the whole of the propH. Gale Turpin. The sale, as reported, was erty to John Wesley Turpin; that since finally ratified and confirmed. On the 20th the purchase of the property Daniel J. Elliof September, 1895, Mr. Toadvine, as trustee, ott and William K. Leatherbury have been executed and delivered to John W. Turpin a threatened with proceedings to dispossess

Argued before BOYD, C. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, WORTHINGTON, THOMAS, and HENRY,

JJ.

Robert P. Graham and Samuel R. Douglass, for appellant. Alonzo L. Miles and James E. Ellegood, for appellee.

them of said property; and that H. Gale | pany v. Elder et al., 53 Md. 463. In that case Turpin has filed exceptions to the ratification certain mortgaged premises were sold under of the sale to them. Their exceptions further allege that they have no disposition to set aside the sale, but they object to the ratification thereof for the reasons stated, and to the end that the sufficiency of their title and whether the same be a clear and marketable title may be determined by the court. The trustee filed an answer to the exceptions of Turpin and the purchasers, in which, among other things, he denied that H. Gale Turpin was a joint owner with John W. Turpin of the property sold as reported; that the report made by E. Stanley Toadvine, trustee, to John Wesley Turpin and H. Gale Turpin as the purchasers of the property, was an error; and that as a matter of fact John Wesley Turpin was the sole purchaser of the property so reported, and that H. Gale Turpin has no interest therein. The purchasers withdrew their exceptions, and the court overruled the objections of H. Gale Turpin and ratified the sales. From these orders of final ratification, which were passed on the 26th of March, 1908, H. Gale Turpin has brought this appeal.

the power contained in the mortgage. The appellant, who was not a party to the mortgage, excepted to the sale upon the ground that he was a judgment creditor of one of the mortgagors, and that the mortgage under which the property was sold was fraudulent, and that he had filed a bill to set the mortgage aside, and that the assignee of the mortgage, who had made the sale, and other parties in interest, had been summoned to the suit, and that pending the suit the mortgaged premises were sold. This court held that it had no power upon objections to the ratification of the sale to decide the questions presented by the exceptions. Judge Robinson, who delivered the opinion, said: "Courts have no power under exceptions to a sale to hear and decide upon the merits of a bill in equity. As between the parties to the suit, the decree is conclusive as to the matter, and as to strangers not parties to the suit it can in no manner affect their rights. Whether the mortgage under which this property is sold was in fact fraudulent or not is an inquiry which could not be heard and decided in this collateral way." We have carefully examined the testimony appearing in the record, and, while the orders appealed against will be affirmed for the reasons stat. ed, we do not hesitate to say that the claim of H. Gale Turpin is not supported by the evidence. The property was bought and paid for by John W. Turpin, and the mention of H. Gale Turpin as co-purchaser with him in the report of sale made by Mr. Toadvine, trustee, was an evident mistake, as he has testified. The conduct of the parties is ut terly inconsistent with the existence, or recognition of such a claim as that asserted in this case. H. Gale Turpin advanced a small amount of the purchase money; but this appears to have been a loan to his father to assist him in paying for the property. On March 9, 1901, he wrote to Mr. Miles, say"As far as I am concerned in the Truitt farm, I have no interest to deed to any one, but, if it is necessary that I should sign any papers to ratify the sale, I am willing to do so. I loaned my father a small amount of money at the time he purchased the farm, and he probably mentioned something of the kind to Mr. Toadvine, and he reported the sale as you stated." This, we think, is a correct statement of the appellant's connection with the purchase of the property by John W. Turpin.

It appears from the testimony taken in support of the exceptions of H. Gale Turpin that he is setting up a secret equity as to one-half of the land conveyed by Toadvine, trustee, to John W. Turpin by the deed of September 20, 1905. He is claiming upon the facts appearing in the record that a trust resulted in his favor as to one-half of the land conveyed by that deed. The law applicable to such a case is well settled. "When it is clearly shown that one has purchased an estate and paid the purchase money therefor, but has taken a deed in the name of another, a trust results by construction of law in favor of the party who has so paid. The payment of the money which is the foundation of the trust can be proved by parol, but the proof must be clear and positive." Johns et al. v. Carroll, 107 Md. —, 69 Atl. 36. If it be assumed that H. Gale Turpin is entitleding: to such an equity in the land sold by Mr. Miles, that equity cannot be established under exceptions to the ratification of the sale. The court has no power in this collateral way to pass such a decree. The right of H. Gale Turpin in the land sold, if he has any, is not affected by the sale, as the trustee sold only the interest of John W. Turpin. If H. Gale Turpin is entitled to an equity in the land, it could only be established by an independent bill brought for that purpose. This is settled by the case of Patapsco Guano Com

Decree affirmed, with costs.

(109 Md. 131)

of the leasehold interest, without setting forth

HOLLANDER et al. v. CENTRAL METAL circumstances tending to prove that fact.

& SUPPLY CO. OF BALTIMORE CITY. (Court of Appeals of Maryland. Dec. 2, 1908. Supplemental Opinion, Feb. 11, 1909.)

1. SPECIFIC PERFORMANCE (§ 107*)—COMPELLING DEED-FORM OF RELIEF.

Under Code Pub. Gen. Laws 1904, art. 16, 8117, providing that, in suits to enforce contracts, the court may order notice to be given nonresident defendants, and section 127, prescribing how the notice shall be given, and section 91, authorizing appointment of a trustee to execute a deed decreed to be executed, while a nonresident cannot be compelled to execute a deed under a contract to convey, the court can appoint a trustee to convey his title, and to that end the proceedings are in rem and not in personam, and sustainable by publication service.

[Ed. Note. For other cases, see Specific Performance, Cent. Dig. § 352; Dec. Dig. § 107.*1 2. SPECIFIC PERFORMANCE (§ 107*)-PUBLICATION SERVICE DESCRIPTION OF LAND SUFFICIENCY.

An order for publication service in a suit to specifically perform a contract to convey sufficiently described the land where it described it as a lot of ground on the east side of a 10foot alley in the rear of specified streets, as being subject to a specified annual ground rent created by a lease between specified persons, of specified date, recorded at a specified place; and where it specified defendants' interest in the reversion, and stated that plaintiff notified defendants of its desire to redeem the rent, and sent them a deed which they refused to execute. [Ed. Note.-For other cases, see Specific Performance, Dec. Dig. § 107.*]

3. EQUITY ( 373*)-SUBMISSION ON PLEADINGS ADMISSIONS.

Where a case is submitted on a petition and answer, the truth of the facts alleged in the answer is taken as admitted.

[Ed. Note.-For other cases, see Equity, Cent. Dig. 711; Dec. Dig. § 373.*]

4. EQUITY (§ 373*)-SUBMISSION ON PLEAD

INGS PRIVILEGE.

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Since, on motion to rescind an order for publication service and on answer thereto, only movant could have the motion set down for hearing, on appeal it must be assumed that it was done at movant's instance.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 914.*]

6. EQUITY (§ 141*)-PLEADING-BILL.

Generally a bill must state clearly plaintiff's right to the relief prayed.

[Ed. Note. For other cases, see Equity, Cent. Dig. 323-330; Dec. Dig. § 141.*]

7. LANDLORD AND TENANT (§ 79*)-COVENANTS RUNNING WITH LEASE-RIGHTS OF LESSEE.

Where a covenant runs with a lease, the lessee's assignee's right to the leasehold interest

entitles him to the benefit of the contract.

[Ed. Note.--For other cases, see Landlord and Tenant, Cent. Dig. § 250; Dec. Dig. § 79.*] 8. SPECIFIC PERFORMANCE (114*)--PLEADING. In a suit to specifically perform a contract to convey to lessees and their assigns, it was sufficient to allege that plaintiff was an assignee

[Ed. Note.-For other cases, see Specific Performance, Dec. Dig. § 114.*]

9. PLEADING (§ 11*)-MATTERS OF EVIDENCE. While every material fact to which plaintiff intends to offer evidence should be distinctly pleaded, a general allegation is sufficient; it not being necessary to charge minutely all the circumstances conducing to prove the general charge, since they are properly matters of evidence.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. § 11; Dec. Dig. § 11.*] 10. SPECIFIC PERFORMANCE (§ 17*)-COVENANTS-PARTIES' PRIVIES.

Wherever, and regardless of the form and technical character of a contract, performance of a covenant respecting lands would have been decreed between the parties to it, it will, in the absence of intervening equities, be decreed as between persons claiming under them in privity of estate, representation, or title.

[Ed. Note. For other cases, see Specific Performance, Dec. Dig. § 17.*]

11. COSTS (§ 172*)-COUNSEL FEES.

Counsel fees are not allowable as costs, in the absence of a statute or special agreement. [Ed. Note.-For other cases, see Costs, Cent. Dig. § 665; Dec. Dig. § 172.*]

12. VENDOR AND PURCHASER (§ 172*)—ConTRACT TO CONVEY-"COST AND CHARGE" OF CONVEYANCE.

A provision in a lease giving the lessee an option to purchase, and further providing that any conveyance shall be at the "cost and charge" of the grantee therein, does not require an assignee of the lease to pay a counsel fee to the vendor for the examination of the assignee's title to ascertain if he is entitled to the conveyance. [Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 172.*]

13. COVENANTS (§ 59*)-COVENANTS RUNNING WITH LANDS.

lessees, their heirs and assigns, is a covenant A covenant to convey the fee of land to running with the land.

[Ed. Note. For other cases, see Covenants, Cent. Dig. § 56; Dec. Dig. § 59.*]

14. SPECIFIC PERFORMANCE (§ 17*) — COVENANT TO CONVEY TO LESSEES.

If a landlord's covenant to convey the fee in the demised land enhances the value of the lessees' interest therein and forms part of the consideration for the acceptance of the lease, equity will decree specific performance not only as between the parties to the contract, but in the absence of intervening equities, also as between those claiming under them in privity of estate. [Ed. Note.-For other cases, see Specific Performance, Dec. Dig. § 17.*]

15. PERPETUITIES (§ 4*)-DEFINITION.

A "perpetuity" is a future limitation, whether executory or by way of remainder, and to vest until after the expiration of, or will not of either real or personal property, which is not necessarily vest within, the period prescribed interests, and which is not destructible by the by law for the creation of future estates and person for the time being entitled to the property subject to the future limitations, except with the concurrence of the individual interested under that limitation.

[Ed. Note. For other cases, see Perpetuities, Cent. Dig. §§ 4-44; Dec. Dig. § 4.*

For other definitions, see Words and Phrases, vol. 6, pp. 5319-5321; vol. 8, p. 7752.]

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