superior court for trial, he made no effort to have himself reinstated as a party to the litigation, although it would seem that by the exercise of ordinary vigilance he would have discovered the fact of his dismissal before the issues were made up. And even after the record was transmitted to the superior court, and the trial was proceeded with there, he seems to have stood by and allowed the case to be conducted to a conclusion in that court, and then, after verdict rendered, for the first time, interposed objections to further proceedings in the case. Whilst courts are ever ready to aid vigilant suitors, they will not encourage laches. These objections, being unavailing in that court, were renewed by his petition filed in the orphans' court a few days later; that is, on April 4, 1908. In this petition it is not alleged that he then only recently obtained knowledge of his dismissal as a party defendant, but only that after his dismissal the proceedings "were had without notice to him." determine the validity of the will, for there may be facts outside of the verdict and not inconsistent therewith which will decide the question, but, when the jury find a fact which necessarily determines the invalidity of the will, the orphans' court are imperatively required to enter up judgment in conformity thereto, and the granting of any other issue would be a wholly useless and nugatory act. Pegg v. Worford, 4 Md. 385; Price v. Taylor, 21 Md. 356. When issues are sent by the orphans' court to a court of law, the province of the latter court is simply to submit to the jury the determination of the issues without reference to whether they were properly presented by proceedings in the orphans' court. Cooke v. Cooke, 29 Md. 538. Whether all persons interested in the will are actual parties or not, the finding of the jury is binding and conclusive upon them as to all questions covered by the issues actually submitted to the jury for its determination. Worthington v. Gittings, supra. There is no doubt but that a person named as the Had he promptly upon discovering the fact executor of a paper writing purporting to be of his dismissal filed his petition in the ora will has such an interest in the proceedings phans' court, setting forth that such dismissrelating to its probate as entitles him to be al had then only recently come to his knowlmade a party to any contest in regard there- edge, and that the same had been accomplishto, but, where a caveat is filed and the con- ed and suppressed by fraud and collusion, he test takes place before probate, the person would upon proof of these facts have been named as executor must, if he desires to de- entitled to be reinstated as a party defendfend the will, do so at his own cost and ex-ant, and to have participated in all the subpense. Townshend v. Brooke, 9 Gill, 90; sequent litigation respecting the subject-matGorton v. Perkins, 63 Md. 589, 3 Atl. 291. He cannot therefore be regarded as a necessary party to such proceedings in his individual capacity, where the contest takes place before letters testamentary have been granted to him. As to the necessity of the appellant's being made a party to the proceedings as administrator pendente lite, this court in a recent case in a very satisfactory opinion by Schmucker, J., held that: "It is not the duty in this state of an administrator pendente lite to conduct at the expense of the estate a litigation to establish an alleged will of the decedent or to defend caveats to papers purporting to be wills. The contest in such litigation is between the next of kin and the parties claiming under the alleged wills." Harrison v. Clarke, 95 Md. 313, 52 Atl. 514. So that neither in his own right nor as administrator pendente lite was the appellant a necessary party to the litigation concerning the validity of the alleged will. It is true that in his own right as the person named as executor he had such an interest in the subject-matter of the litigation as entitled him, if he desired to defend the alleged will, to be made a party to the proceedings, but although he filed his answer to the caveat as attorney for the executor, and was therefore in the case as an attorney as well as in his own right, yet from the date of his dismissal on May 18, 1907, till October 15, 1907, ter of the controversy; and, notwithstanding the finding of the jury, the orphans' court would under such circumstances have been justified in rejecting such finding, and in sending the issues to be retried before a jury with the appellant as a party defendant to the proceedings. But his petition filed on April 4, 1908, not only does not state when the fact of his dismissal first came to his knowledge, but neither does it allege fraud, and, though it contains the statement that "the entire proceedings were the result of collusion," yet it does not set forth with sufficient particularity of what the collusion consisted, nor is there any proof whatever to sustain the charge. Even if the proceedings be irregular in any respect, in the absence of fraud and collusion clearly alleged and prov en, the appellant had not after the finding of the jury any standing in court to impeach them or call them in question. McCambridge v. Walraven, 88 Md. 378, 41 Atl. 928; Worthington v. Gittings, supra. After carefully examining the record in the case and the authorities cited by counsel, we can find no ground for reversing the order of the orphans' court, dismissing the appellant's petition and rendering judgment on the verdict of the jury. We have not considered the motion to dismiss the appeal, because it does not clearly appear from the affidavits filed whether the delay in transmitting the record was attribu appellant, and we therefore express no opin- | suit was brought to recover the sum of $2,ion in regard to the legal question intended 151.21 alleged to be due the plaintiff by the to be raised by such motion. defendant on account of certain work which Order affirmed, with costs to the appellees. will be presently alluded to. It appears from (109 Md. 465) the bill of particulars filed by the defendant with its plea of set-off that the plaintiff is indebted to it in the sum of $4,162.75. The OLIVER & BURR v. NOEL CONST. CO. OF trial resulted in a verdict in favor of the BALTIMORE CITY. (Court of Appeals of Maryland. Jan. 13, 1909.) 1. CONTRACTS (§ 188*)-BUILDING CONTRACTS -SUBCONTRACTS. A subcontractor for part of the work of erecting a building must be held to have contracted to do his work according to the specifications of which he knew, according to which, as provided in the original contract, the work was to be done. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 8 808; Dec. Dig. § 188.*] 2. SET-OFF AND COUNTERCLAIM (8 56*)-EFFECT OF PLEA. A plea of set-off does not admit the correctness of plaintiff's account; the effect of the general issue filed being to deny the whole claim. [Ed. Note.-For other cases, see Set-Off and Counterclaim, Cent. Dig. § 127; Dec. Dig. § 56.*] 3. FRAUDS, STATUTE OF (§ 23*) — ORIGINAL UNDERTAKING. Where defendant sublet part of its construction contract to C., which, in turn, sublet it to plaintiff, plaintiff's oral agreement with defendant, on fault being found with its work, and payment refused, that if defendant would pay C., so that it could pay plaintiff, plaintiff would hold defendant harmless against any loss it would thereby sustain, was not one of guaranty or suretyship, but a valid original undertaking. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 18, 19; Dec. Dig. § 23.*] 4. APPEAL AND ERROR (§ 1064*)-HARMLESS ERROR. Failure of an instruction to specify the time from which interest might be allowed is not ground for reversal; it being reasonably certain no injury resulted. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. 1064.*] Appeal from Baltimore City Court; George M. Sharp, Judge. Action by Oliver & Burr, a corporation, against the Noel Construction Company of Baltimore City. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before BOYD, C. J., and PEARCE, SCHMUCKER, BURKE, WORTHINGTON, and THOMAS, JJ. Rignal W. Baldwin and Richard M. Duvall, for appellant. R. Howard Bland and J. Kemp Bartlett, for appellee. defendant for $934.82, upon which final judgment was entered. It is from this judgment that the appeal before us is taken. The questions of law raised upon the record are simple; but there is very great conflict in the testimony. Only one bill of exceptions is brought up by the appeal, and that relates to the ruling of the court on certain prayers presented at the close of the whole case. With the weight of evidence and the credibility of the witnesses we have nothing to do, as those matters were exclusively for the jury, and, if the case was fully and fairly submitted to the jury under the granted prayers, the judgment must be affirmed. It is not necessary in order to dispose of the case to indulge in a minute discussion of the evidence. It will be sufficient to consider its general purport and effect. The record shows that in 1902 Edgar M. Noel and Daniel W. Thomas entered into a contract with the United States government for the construction of certain buildings at the Naval Academy at Annapolis. This contract was assigned to the Noel Construction Company, the appellee, a corporation organized to finance the work. This work was to be done in accordance with elaborate and detailed specifications furnished by the government. The Noel Construction Company sublet the contract for the fireproofing of the cadets' quarters building to the Columbian Fireproofing Company of Pittsburg, which, in turn, sublet their contract to Oliver & Burr, the appellant, a New York corporation, and this last-named company proceeded The con under the contract to do the work. tract of the Pittsburg company which was sublet to the appellant was for the metal partitions on certain floors of the cadets' building. Later the government decided to raise the roof of this building and add a fourth floor. The contracts for the metal lathing and hung ceiling were made directly between the appellant and appellee. On October 9, 1903, the appellant wrote to the appellee proposing "to furnish and put in place all the metal furring required by the plans BURKE, J. This is the plaintiff's appeal and specifications of Mr. E. Flagg, architect from a judgment entered against it in the for the cadets' quarters building at AnnapoBaltimore city court. The declaration con- lis, Md., including paragraphs 875 to 877, intains the common counts only, to which the clusive, and all other paragraphs therein redefendant pleaded the general issue pleas up-ferred to for the sum of seventy-five hundred on which issue was joined. Subsequently, by ($7,500) dollars; subject to contract that leave of court, the defendant filed a plea of set-off to which a replication was filed and issue joined. An itemized account was filed with the narr., by which it appears that the may be mutually agreed upon." This proposal was accepted by the appellee in a letter to the appellant of that date. By letter of October 31, 1903, the appellant proposed to furnish and erect partitions on the top | with the plans and specifications. It would floor of this building for the sum of $5,900, be most unreasonable to suppose that it was and the suspended ceiling for $4,700. This of- in contemplation of either party that the fer was accepted by letter of February 18, 1904. work could be done in disregard of the plans The appellant at the time these contracts and specifications, because they both knew were made was engaged in doing the same that work so done would not be accepted. character of work on the building under his Mr. Albert Oliver, the president of the appelcontract with the Pittsburg company, and he | lant company, was the only witness offered proceeded with the work under all the contacts. The contract for the work of plastering to be done in this building was sublet by the general contractor to Barwell & Cantlin, and the manner in which their work was done presented, as will be seen, one of the important questions of fact for the consideration of the jury. As the main questions in this controversy concern the steel studding and lath partitions and the plastering, it is necessary at this point to refer to the parts of the specifications which provide for that work. in chief in support of the plaintiff's case, and he gave testimony tending to prove that the plaintiff had done the work embraced in the account filed with the declaration, and that the defendant was indebted to the plaintiff in the full amount claimed, to wit, $2,151.21. He testified that the whole trouble rose from the plastering done by Barwell & Cantlin, that the plaintiff had had nothing to do with the plastering, and that he had warned the plasterers that they were spoiling the work. The defendant offered evidence tending to . A question was made during the trial as prove the following facts: That the work to the duty of the appellant to do certain done by the plaintiff under its contract with painting for which the defendant claimed an the Pittsburg company was not done accordallowance in his plea of set-off. This ques- ing to specifications and had been condemned tion was raised by the plaintiff's eighth pray-by the government, and that this was known er, which was, however, abandoned in this to the plaintiff, and that the defendant withcourt, and it will not be necessary to con-held payments to the Columbian Company, sider the paragraph of the specifications pro- which, in turn, withheld payments to the viding for that work. The paragraphs of the plaintiff; that the plaintiff, being badly in specifications relating to metal and lath par- need of money which it claimed was due by titions and to the plastering are as follows: the Columbian Company, agreed with the de"(838) The partitions for toilet and bath- fendant over the telephone on May 9, 1904, rooms in basement of wings and in ground that, if it would pay that company so that floor of stair towers, and partitions in roof it could pay the plaintiff, the plaintiff would space over Memorial Hall, extending from hold the defendant harmless against any loss top of ceiling light up to skylight curb, are it would sustain; that the Oliver & Burr to be constructed of iron or steel studding Company would become responsible to the deand metal bath for 2 in. solid plaster finish. fendant for any damage it might sustain; Studding to consist of 1 in. or 4 in. steel that it did pay the Columbian Company upchannels as height or location may require, on the faith of this promise, and that that spaced 10 in. on centers and secured at bot- company paid the plaintiff; that this agreetom and top to the concrete, iron or other ment had reference to the work done by the construction by clamps or angles, and proper-plaintiff under its subcontract with the Coly braced or stiffened where so required.lumbian Company, and was confirmed by letThe partitions inclosing basement stairs in ter of the plaintiff dated May 9, 1904. It furthe two stair towers are to extend from ther offered evidence tending to prove that ground floor up to and properly finish against bottom of stair string above." "(888) All plastering, except as hereinafter otherwise specified, is to be best three coat work of lime mortar mixed in proper proportion to give the best results. The mortar for scratch and brown coats is to be gauged with Portland cement using one half of a barrel of cement to each cubic yard of mixed mortar for brick, terra cotta, block and concrete surfaces, and not less than three quarters of a barrel for lath surfaces." the plaintiff in doing the work referred to in the agreement had not observed the requirements of the specifications, and that the work was entirely unsatisfactory and was condemned, and that in consequence thereof the defendant was subjected to a loss greatly in excess of the plaintiff's claim; that it sustained certain other items of loss set out in the bill of particulars filed with its plea of set-off. It further offered evidence to prove that the plastering was done in strict conformity to the requirement of the The plaintiff must be held to have under-specifications which has been herein quoted taken to do all the work contracted for upon the building in accordance with the specifications. Mr. Oliver was aware of the specifications, and was no doubt familiar with their requirements; otherwise it would have been impossible for him to bid intelligently upon the work. Besides, his proposal of October relating to that work. In rebuttal Mr. Oliver denied that he had made the agreement to be responsible for loss resulting from work done under the contract with the Columbian Company, and also disputing certain other allowances claimed by the defendant, and repeated his former statement that the whole trouble the evidence is seen the issues of fact which | plaintiff under them was given a full opporthe jury were to decide as well as the legal tunity to present all its contentions to the questions concerning which the court was asked to advise them. as a legal conclusion that the plaintiff was entitled to recover, even if the constructions of the specifications stated in the prayers be correct. They contain no certain or definite guide for the jury. The subject-matter of the seventh prayer is fully covered in its first. The eighth prayer was abandoned. The ninth prayer erroneously assumed that the plaintiff was not bound under the contract of February 18, 1904, to comply with the specifications. The tenth prayer asserted that the effect of the plea of set-off is an admission of the correctness of the plaintiff's account. This is maintained notwithstanding the fact that the general issue pleas filed by the defendant deny the whole claim. The eleventh prayer is open to the same objection as the fourth, fifth, and sixth, and was besides calculated to mislead the jury. The twelfth prayer asserted that there was no legally sufficient evidence in the case to entitle the defendant to recover any damages under the agreement of May 9, 1904. As we have heretofore shown, there was abundant evidence upon this point. The fourteenth, fifteenth, and sixteenth prayers are based upon a mis jury. The proposition announced in the plaintiff's second prayer is more fully and The plaintiff offered 16 prayers. The court correctly stated in its first. Its third prayer granted the plaintiff's first and thirteenth contains an hypothesis of fact of which there prayers, and the defendant's sixth prayer. is no evidence, viz., that the defendant made It amended the defendant's seventh prayer, no objection to the work. Its fourth, fifth, and granted it as modified, and refused all and sixth are too general and indefinite. the other prayers. To the granting of the They contain no instructions to the jury as two prayers on behalf of the defendant, and to the effect of the construction contended in refusing its other prayers, the plaintiff for, under the facts of the case, upon the excepted. The jury were told by the plain-rights of the parties. It by no means follows tiff's first prayer that if they found from the evidence that the plaintiff undertook to provide the materials and erect the steel studding and lathing for the partitions on the ground floor, and the first, second, third, and fourth floors in the cadets' quarters building, and the hung ceilings and extras mentioned in the evidence according to the specifications therefor, also offered in evidence, and if they shall find said specifications and for the prices mentioned in the plaintiff's proposals and the account offered in evidence, and that said work was performed and materials furnished in all respects according to said specifications, that the defendant accepted said work and paid the whole of said contract prices except the balance $2,151.21, as shown by said account, then the plaintiff is entitled to a verdict of said balance with interest in the discretion of the jury from the time said work was fully completed, less such sum, if any, as the jury may find the plaintiff agreed to deduct from its $5,900 proposal as testified to by the witness Noel, and any damage the jury may find resulted to the defendant from the withdrawal of the letter referred to in the letter | apprehension of the nature of the agreement of May 9, 1904, written by Albert Oliver to of May 9, 1904. They treat this contract as the defendant, if the jury shall find said let- one of guaranty or suretyship; but, if it exter, and that it contained the agreement be- isted at all, it was an original undertaking tween the parties, and such sums as are on the part of the plaintiff to reimburse the charged in said account of the plaintiff and defendant for losses which it might sustain which the jury may find were disallowed by on account of the work mentioned, provided the United States government, provided if the defendant would do certain things which the jury shall find the total amount the de- the evidence tended to show it did do. Its fendants are entitled to by way of set-off ex-object was to protect the defendant in case it ceed the amount of the present claim, then surrendered its claim against the Columbian the jury are at liberty to find for the defend- Company for the benefit of the plaintiff, ant for the amount of such excess. By its which it did, and the plaintiff was paid the thirteenth prayer the jury were instructed money which that company was withholding. that the defendant was bound to establish by When the object of the agreement, its suba preponderance of evidence the alleged agree-ject-matter, and the surrounding circumstanment set up by the defendant as having been ces are considered, there can be no doubt that made by it with the plaintiff through the wit- the agreement was a valid original undertakness Noel over the telephone, and, if the ing. There can, we think, be no possible obminds of the jury are left in a state of equi-jection to the defendant's seventh prayer. It poise, then the defendant is not entitled to merely told the jury that if they found that recover anything by reason of said agreement the plaintiff's work was not performed acunder its plea of set-off in this case. We are cording to the specifications, and should find of opinion that, by the plaintiff's first and that by reason of the failure of the work to thirteenth prayers and the defendant's sev-conform with the specifications the defendant enth prayer, the whole case was fairly sub- suffered loss or damage, then the defendant mitted to the jury. Under these prayers all was entitled to an allowance against the the issues of fact raised by the pleadings were plaintiff for such loss. By the appellee's open to discussion before the jury, and the sixth prayer the jury were instructed that, in PATION. sociation of clothiers, organized primarily to dis- [Ed. Note.-For other cases, see Torts, Cent. Dig. § 10; Dec. Dig. § 10.*] case they found for the defendant, they were 6. TORTS (§ 10*)-INTERFERENCE WITH OCCUat liberty in their discretion to allow interest. It is objected to this prayer that it does not fix the date from which they might calculate the interest. Upon the facts contained in the record, there is no doubt that the prayer is defective in this respect, as there is no evidence as to when the several items in the set-off became due; but, when the amount of the verdict and all the facts are considered, we are not satisfied that this defect resulted in any injury to the appellant. The court will not reverse a judgment for an error of this nature where it is reasonably certain, as it is in this case, that the appellant has not been injured by the erroneous ruling. This case, involving many disputed questions of fact, was fairly tried in the court below, and submitted to the jury under instructions which allowed them to consider fully all the contentions of the respective parties, and from an examination of the whole record we see no good reason why the judgment which was entered as the result of a long trial should be disturbed, and it will therefore be affirmed. Judgment affirmed, with costs. 1. TORTS (§ 10*) - MALICIOUS INTERFERENCE WITH BUSINESS OR OCCUPATION. Any malicious interference by a single individual, or by a number of individuals conspiring together, with the business or occupation of another, followed by damage, is an actionable wrong. [Ed. Note.-For other cases, see Torts, Cent. Dig. § 10; Dec. Dig. § 10.*] 2. MASTER AND SERVANT (§ 20*)-TERMINATION OF RELATION-RIGHT OF MASTER. Employer, or employé, where no contract right is involved, may lawfully terminate the relation at any time, and for any cause, but either cannot interfere without cause with the occupation of the other. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 19; Dec. Dig. § 20.*] 3. TORTS (§ 10*)-INJURY TO BUSINESS. Injury to the business of another, accomplished by threats or coercion, constitutes a ground of action for damages, though there is no remedy against fair and honest competition. [Ed. Note. For other cases, see Torts, Cent. Dig. 10; Dec. Dig. § 10.*] 4. TRADE UNIONS (§ 1*)-RIGHT TO ORGAN IZE. Employés may combine in unions for lawful purposes, but must employ lawful methods for the attainment of such purposes. 7. TORTS (§ 28*)—INTERFERENCE WITH OccuPATION-TRIAL. Whether a discharged employé of a member of an association of clothiers, organized primarily to discipline employés, was damaged because of inability to obtain employment in consequence of a letter, written and circulated through the association by a son of the member, held, in an action against the employer, for the jury. Dig. § 28.*] 8. TORTS (§ 27*)—INTERFERENCE WITH OCCU PATION-EVIDENCE-ADMISSIBILITY. In an action by a discharged employé for damages for failure to obtain work in consequence of a letter, written and circulated by a son of the employer, evidence that one not a member of an association of which the employer was a member refused to give the employé employment after hearing that he had been blacklisted was admissible, though the information was communicated by the employé himself. [Ed. Note.-For other cases, see Torts, Dec. Dig. § 27.*] 9. PRINCIPAL AND AGENT (§ 159*)—LIABILITY TO THIRD PERSON WRONGFUL ACT OF AGENT. Where the son of a member of an association of clothiers, organized primarily to discipline employés, wrote and circulated through the association a letter concerning a discharged employé of the member, but there was nothing to show that the member either authorized or ratified the act, and there was nothing to show that the member was responsible on the ground of the agency of the son, the member was not responsible for the damages sustained by the employé in consequence of the letter. [Ed. Note-For other cases, see Principal and Agent, Dec. Dig. § 159.*] 10. EVIDENCE (§ 471*)-OPINION EVIDENCEADMISSIBILITY. Where the actuary af an association testified that he had no knowledge of a letter havroutine of the office in such matters, the court ing been issued from his office, and stated the properly sustained an objection to a question calling for his opinion as to whether the letter was issued out of his office. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 471.*] 11. EVIDENCE (§ 317*)-HEARSAY EVIDENCE. In an action by a discharged employé for damages sustained in consequence of being un [Ed. Note. For other cases, see Trade Un- able to obtain employment because of a letter ions, Cent. Dig. § 1; Dec. Dig. § 1.*] 5. ASSOCIATIONS (§ 1*)-RIGHT TO FORM. Employers may combine in associations for lawful purposes, but must employ lawful methods for the attainment of such purposes. [Ed. Note.-For other cases, see Associations, Cent. Dig. § 1; Dec. Dig. § 1.*] written and circulated by his employer, testimony of the employé as to what reason the various persons to whom he applied for employment gave for their refusal to employ him was inadmissible as hearsay. [Ed. Note.--For other cases, see Evidence, Cent. Dig. §§ 1174-1192; Dec. Dig. § 317.*] |