although relative to instructions, is pertinent to this case: "When an exception is taken to instructions which are erroneous, upon a point which, if made known at the time, would have been rectified, the point must be stated, so that the court can understand the ground of objection, and have an opportunity to correct the error. It would be unjust to allow a party to lie by and take the chances of a verdict in his favor, and, if defeated, avail himself of an exception which might have been obviated if seasonably known." * * (139 Md. 522) HERBERT v. DAVIS. (No. 21.) (Court of Appeals of Maryland. Dec. 1, 1921. 1. Appeal and error 1064(1)-Modification of prayer held not prejudicial. . In a broker's action for commission for the sale of a farm, where defendant contended there was an agreement that no commission should be paid, a modification of plaintiff' prayer that, if defendant employed him to procure a purchaser, which he did, and the property was sold to such purchaser, plaintiff was entitled to customary compensation, by adding "unless there was a special agreement that between plaintiff and defendant * no commission or compensation for such services was to be paid," was not prejudicial as tending to mislead the jury. ** * If the objection now urged could have been sustained at the trial, it is now of no avail, because it was not then made nor claimed. [4] A witness for the state on cross-examination repeated a statement made to him by a woman who was in the automobile when the accident occurred. The statement was made by her in a hospital a few hours before she died. In his argument to the jury the solicitor, referring to the statement, said:inally stipulated, a prayer to find for defend "This was a dying declaration, which, according to law, we could not introduce unless the woman believed she was going to die, and it was introduced as a dying declaration." Counsel for the respondent stated: "I wish to take exception that this was a dying declaration." The solicitor then said: "Your honor, I said that we could not introduce it unless the woman believed that she was about to die. If they object, I will withdraw the statement that it was a dying declaration. It was a declaration made before death. It was not a dying declaration, because we did not have the woman believe that she was going to die. So we could not introduce it here for the state." Exception by the respondent. The statement made by the woman was in fact a dying declaration, although it was not taken with the formalities that would render it admissible in evidence as such. This is in substance what the solicitor told the jury when the first exception was interposed. The statement was introduced by the respondent's counsel on cross-examination, and, being in evidence, it was legitimate for the solicitor to comment upon it. The argument was proper, and it was not prejudicial to the respondent, but was favorable to him, "because it disclosed that the declaration was not clothed with the solemnity of knowledge of impending death." There was an exception by the respondent to evidence, but it is not understood that reliance is placed upon it. Exceptions overruled. 2. Brokers 88 (7)-Prayer held erroneous as basing right to commission on terms of superseded agreement. In an action for commissions for sale of a farm at a lower price than the net price orig ant if plaintiff agreed to sell on a net basis was defective as basing plaintiff's right to recover on the terms of the original agreement, without regard to subsequent changes shown by the evidence. 3. Trial 252(16)—Submission of issues not supported by evidence, properly refused. In a broker's action for commissions for the sale of a farm, where there was no legally sufficient evidence that plaintiff acted as the agent or in the interest of the purchaser, or did not use disinterested diligence and skill for defendant's exclusive benefit, defendant's prayers to submit such issues to the jury were properly rejected. 4. Appeal and error 1051 (2)-Admission of evidence of facts shown by other undisputed evidence not prejudicial. In a broker's action for commission for selling a farm, defendant was not prejudiced by admission of purchaser's testimony that he was brought into contact with defendant through plaintiff's efforts, where such fact was shown by other undisputed evidence. Appeal from Circuit Court, Charles County; B. Harris Camalier and Fillmore Beall, Judges. Action by Joseph L. Davis against C. Posey Herbert. Judgment for plaintiff, and defendant appeals. Affirmed. Argued before BOYD, C. J., and THOMAS, PATTISON, URNER, STOCKBRIDGE, and OFFUTT, JJ. Edward J. Edelen and John F. Mudd, both of La Plata (Mudd & Edelen, of La Plata, on the brief), for appellant. Charles Clagett, of Baltimore (Mitchell & Digges, of La Plata, and Clagett & Thomas and James Thomas, all of Baltimore, on the brief), for appellee. (115 A.) PATTISON, J. The appeal in this case is from a judgment recovered by Joseph L. Davis, the appellee, against C. Posey Herbert, the appellant, in the circuit court for Charles county for commissions claimed by the appellee to be owing to him by the appellant for the sale of the latter's farm in Charles county. Joseph L. Davis, the plaintiff, a real estate agent or dealer, testified that in the spring of 1919 he was in Hughesville, and while there saw Herbert, the defendant, and asked him if he wished to sell his farm, and he replied that he had bought it expecting to go there himself, but, having determined not to do so, "he would sell it." The plaintiff then asked him the price at which he would sell. He said that that "he wanted $16,000 for it," and when asked if he would pay commission out of that said, "No; I want $16,000 net." The plaintiff said he would try to sell it for him, and defendant said, “You can go ahead and sell it." Some time thereafter the defendant's farm was, by the plaintiff, shown to one Leo S. Knott, who subsequently became the purchaser of it. Knott was told by the plaintiff that he thought it could be bought "around $16,000." This Knott thought was too much for the property, but said he would come back and again look it over. The plaintiff then called up Herbert and told him he thought he had a prospect of selling his farm, but did not believe he could get his price. On the next morning, or the day after, Herbert went to plaintiff's home at Charlotte Hall and discussed with him the sale of the farm, and plaintiff there told him the condition of the farm did not warrant the price he asked for it, but said he would do the best he could; that Knott, he thought would come back, although he had said that he would not pay over $15,000 for the farm; that he would try to bring Mr. Knott back if defendant was inclined to take $15,000 for it. The defendant then suggested to plaintiff that he bring Knott up to see him when he came, and plaintiff then called Knott up on the phone and arranged that he should come the next day, or in a few days thereafter. When he came "they walked the property over thoroughly," and Knott said to him that he would not pay over $15,000 for it. The plaintiff then told him that he had no authority to consider the offer, but suggested that he should go to see Mr. Herbert. So both he and Knott called upon Herbert, who was told by the plaintiff that he had brought Knott up to discuss with him the sale of his farm. Herbert said to Knott, "Hasn't Mr. Davis told you?" and he replied, "Well I told Mr. Davis I could not give over $15,000 for it, provided you accept my terms." Knott then told him what his terms were, and Herbert said: "Well, the farm is not in very good condition this year. * I do not expect to use the farm as a home. I have decided to sell it, and I will take your offer." A contract of sale was then drawn up by Davis by which $200 in cash was paid at the time to Herbert and the balance was to be paid as follows: $4,800 as soon as the title thereto could be examined and deed prepared, and balance of $10,000 was to be secured by a mortgage. It was also agreed that the purchaser should receive half of all crops of that year, and he pay the taxes for 1919. Shortly after the day upon which the contract was executed the plaintiff called the defendant over the phone and said to him, "I suppose you understand that I am expecting a commission from the sale," and Herbert said to him, "No; I told you this was a net price," to which the plaintiff replied, "You told me the $16,000 was net; I brought a customer to you, and you agreed to take $15,000." The plaintiff then suggested to him that he did not mention "net to him" either on the occasion when he was at his home at Charlotte Hall or upon the day the contract was executed, and, as he says, "I thought you were going to pay me a commission, as you did not say anything about the $15,000 being net to me." After that plaintiff was at Hughesville and again brought this question to the attention of Herbert by saying to him, "I think it is nothing more than fair that you should pay me a commission; I effected the sale and turned the customer over to you, and I certainly think I am entitled to my commission." Herbert said, "Not a damn cent," and the plaintiff replied, "This is rather a wrong view to take of it." The plaintiff further testified that on Herbert's second visit to Charlotte Hall that Herbert said to him to get for him in the sale of the farm all that he could, but the lowest he would take was $15,000. Herbert, he said, dealt directly with Knott on the occasion when the sale was consummated and the contract executed. Knott corroborated the plaintiff in his statements that he was shown the property by the plaintiff; that he was told by him that it could be bought for about $16,000; that he went with the plaintiff to see Herbert, and he asked him the lowest price he would take for it and he said, “Josie (meaning the plaintiff) knew the best price," which was $15,000; that he agreed to take the farm at that price, and the contract was then and there executed, which contained the agreement as to the crops and taxes, and when asked, "With whom did you make the agreement for the purchase of the farm?" he replied, “Mr. Herbert directly." The defendant when upon the stand said: "Mr. Davis came to me at Hughesville and wanted to know whether I would sell the farm. terms of which the broker is not to be paid "Where there is a special contract, by the commissions unless he sells the property at a specified price, the sale by him at such a price is a condition precedent to his right to compensation, unless pending the negotiation, and whilst his agency remains unrevoked, the own I told him 'Yes.' He wanted to know what I, lar to the one before us. In that case the wanted for it, and I told him $16,000. He said court said: to me, 'You are going to pay commission?' I said, 'No, sir; I pay no commission; it has got to be your net price.' Nothing more was said on that occasion about the sale of the farm. After that on one occasion upon the defendant's return from Baltimore he was told that the plaintiff wished him to call him up over the phone, which he did, and the plaintiff said to him, 'Well, I think I have sold your farm.' I said, 'Is that so?' He said, 'Yes.' We talked a little bit, and he said, 'I don't care to talk over the phone; you drive down to Charlotte Hall to see me.' So I drove down there to see him, and we got to talking about the place. He said to me, 'I think you are a little steep on that place,' or something to that effect. He said, 'I will tell you what I can do; I will get you $15,000 for it.' Finally I agreed to it after a little while. I said, 'All right, sir; if you get me $15,000 for it, you can sell it.' And the commission was never men tioned any more after the first time it was talked of." In the course of the trial one exception was taken to the admission of evidence and one to the ruling of the court upon the prayers. The plaintiff offered one prayer, which after modification by the court was granted. The defendant offered four prayers, all of which were rejected. er consents to a sale for a sum other then originally agreed upon. In this case then, although by the terms of the original contract the appellee was not to receive commissions unless he sold the house for $16,000, yet, if pending the negotiations the appellant and his wife agreed to take $14,000, and the sale was made through the agency of the appellee at that price, he would undoubtedly be entitled to commissions." And further on in the same opinion it is said by the court that "It is well settled, if the agent introduces or discloses the name of the purchaser, and such introduction or disclosure is the foundation upon which negotiations are begun and the sale effected, he will be entitled to commissions, and this, too, although in point of fact the sale may have been made by the owner. In other words, he cannot avail himself of the services, and by making a sale through information derived from the agent deprive the latter of his commissions. Keener v. Harrod & Brooke, 2 Md. 63; Beall v. Creswell, 3 Md. 196." The objection urged against this prayer by the appellant as disclosed by the brief of his counsel is that the addition thereto made by the court tends to mislead and confuse the jury. The prayer was no doubt modified by the court to meet the contention of the appellant that there was an agreement between the parties that no commission or compensation was to be paid by the defendant to the plain [1] The jury were told by the plaintiff's tiff for his services in connection with the prayer that, if they found "from the evidence that the defendant employed the plaintiff to procure a purchaser for the property spoken of by the several witnesses, and the plaintiff did procure a purchaser for said property, and said property was sold by the defendant to the purchaser procured by the plaintiff, if they shall so find, then the plaintiff is entitled to recover such compensation as they may find usual and customary for services so rendered, unless they shall further find that there was a special agreement between the plaintiff and the defendant, in force at the time of the execution of the written contract of sale offered in evidence in this case, that no commission or compensation for such services was to be paid by the defendant to the plain tiff." The court modified the prayer as offered by adding thereto the italicized words of the prayer. The prayer as offered was approved in sale of the property, and we cannot conceive how the same could tend to mislead or confuse the jury, or how the appellant could have been injured thereby. [2] By the defendant's first prayer the jury were told that, if they found from the evidence that, when the defendant listed his property for sale with the said plaintiff, said plaintiff agreed to sell said property on a net basis (to said defendant), and not on a commission basis, then the verdict must be for the defendant. This prayer is defective in the fact that the rights of the plaintiff to recover is made to depend upon the terms and provisions of the alleged original agreement between him and the defendant under which he first undertook to sell the property, without regard to the changes thereafter made in said agreement, shown by the evidence in the case. His second prayer, we think, also was properly re (115 A.) Wife's bill against husband held to state a cause of action for an accounting and discovery of moneys, securities, and properties in his hands and possession belonging to her. [3] The third prayer of the defendant sub- [2. Husband and wife 229(1)—Wife's bill held to state cause of action for accounting mitted to the finding of the jury the question and discovery of moneys in husband's poswhether the plaintiff was "in the employ actsession. ing as the agent of the said purchaser," “or that the plaintiff was acting in the interest of said purchaser." This, too, was properly rejected, as there was no evidence legally sufficient in the case upon which the jury could base their finding; and by the defendant's fourth prayer the jury was asked to find whether the plaintiff "used disinterested diligence and skill for the exclusive benefit of Bill by Helen Beall Cochrane against J. the defendant." This prayer was also prop- W. Scott Cochrane. From an order overrulerly rejected, as there was no evidence what-ing demurrer to bill, defendant appeals. Orever in the record showing that the plaintiff did not use disinterested diligence and skill or that he was not acting for the exclusive benefit of the defendant. This brings us to the rulings upon the evidence. [4] In the course of the trial Knott, the purchaser, was asked, "Were you or not brought in contact, in reference to the purchase of this property, with Mr. Herbert through the efforts of Mr. Davis?" This question was objected to by the defendant for the reason: First, that it was leading; and, second, that it submitted to the witness for his determination a question that was to be determined by the jury. The court overruled the objection, and the witness answered, "Yes, sir." Appeal from Circuit Court, Dorchester County, in Equity; John R. Pattison, Judge. "To be officially reported." der affirmed, and cause remanded. Argued before BOYD, C. J., and BRISCOE, THOMAS, URNER, STOCKBRIDGE, and OFFUTT, JJ. J. W. Scott Cochrane, of Cumberland, in pro. per. Henry Lloyd, Jr., and Henry & Henry, all of Cambridge, for appellee. BRISCOE, J. This is an appeal from an order of the circuit court for Dorchester county overruling a demurrer to a bill in equity, with leave to the defendant to file an answer to the bill of complaint within 10 days from the date thereof. The bill is filed by a married woman against her husband, for an accounting and a discovery of certain moneys, securities, and Whatever may be said as to the correctness properties in his hands and possession beof the court's ruling thereon, it is unneces-longing to her, and to pay over to her all sary for us to pass upon it, inasmuch as it sums of money wrongfully received by him was otherwise shown by the undisputed evi- for her, and to deliver to her such securities dence in the case, that of the plaintiff and de- and other property, now in his hands. fendant, that it was through the efforts of Davis, the plaintiff, and him alone, that Knott, the purchaser, was brought in contact with the defendant, and that the plaintiff was the procuring cause; consequently the defendant was in no way injured by this ruling. As we find no errors in the rulings of the court below, the judgment will be affirmed. Judgment affirmed, with costs. The bill, in substance, alleges that the plaintiff is the wife of the defendant, having been married to him in the city of Cumberland, Md., and that they resided there for a number of years; that she has been for a short time living apart from her husband, making her home in Baltimore city, and he It is residing in Dorchester county, Md. further alleged that, in the year 1906, the defendant, without the consent of the plaintiff, wrongfully acquired and took possession of property and securities of the plaintiff, consisting of certain promissory notes, and also certain mortgages on real estate situate in Allegheny county, Md.; these notes and mortgages amounting in the aggregate to the sum of $10,390, and, to the best of the (Court of Appeals of Maryland. Dec. 1, 1921.) knowledge and belief of the plaintiff, exe (139 Md. 530) COCHRANE v. COCHRANE. (No. 31.) 1. Husband and wife 210(1)-Wife can maintain action for recovery, security, or protection of her property. cuted by and given by certain persons set out in the bill. The bill also alleges that the defendant, since the wrongful acquisition of his possession of her property in 1906 down to the present time, has controlled and man Under Code Pub. Gen. Laws, art. 45, 88 5, 20, the wife is vested with the legal title to her separate estate, and can maintain an ac-aged the same without rendering to your tion for the recovery, security, or protection of plaintiff a proper account of the principal her property as fully as if she were a feme and income derived from it, and without sole. making to her any proper payment of the 45 Atl. 476; sections 344-347, 1 Poe's Pleading and Practice; Lyell v. Walbach, 113 Md. 578, 77 Atl. 1111, 33 L. R. A. (N. S.) 741. principal received by him or the interest col-f could sue her husband as well as any other lected thereon. The bill further charges person for the protection of her property, that the defendant has paid to the plaintiff under section 5 of the article. Hill v. Bovarious sums of money at different times land, 125 Md. 116, 93 Atl. 395, Ann. Cas. during the years from 1906 to the present 1917A, 46; Taylor v. Welslager, 90 Md. 409, time; that the defendant rendered to the plaintiff a statement purporting to giye the sums of money received and the moneys expended by him between the dates July 18, 1906, and April 30, 1918, but the statement was manifestly inaccurate and incorrect; that he also paid to her on the 30th of June, 1920, the sum of $2,727.51, but that this payment was not a settlement in full, but there is still a large sum of money rightfully due to her, the payment of which she has demanded, but which has been refused by him, and he has also refused to restore and deliver to her the securities now in his possession and belonging to her. The prayer of the bill is: First, that the defendant may, on oath, answer the bill and discover and set forth in detail all sums received by him, and all disbursements made by him, together with the moneys or securities of the plaintiff now in his possession, accounting from the 1st day of July, 1906, to the date of this bill, and account with the plaintiff for the same; second, that the defendant may be decreed to pay over unto the plaintiff all sums of money due to her on account of the property wrongfully taken charge of by him; and, third, a prayer for general relief. It will be seen that a complete change was made and effected in the law as to the rights of married women in this state by chapter 457 of the Acts of 1898 and by chapter 633 of the Acts of 1900, and now embraced as sections 5 and 20 of article 45, titled "Husband and Wife," Bagby's Code, vol. 1, p. 1163, Code Public General Laws. By section 5 of article 45 of the Code it is provided: "Married women shall have power to engage in any business, and to contract, whether engaged in business or not, and to sue upon their contracts, and also to sue for the recovery, security or protection of their property, and for torts committed against them, as fully as if they were unmarried; contracts may also be made with them, and they may also be sued before or during marriage, and for wrongs inseparately upon their contracts, whether made dependent of contract committed by them before or during their marriage, as fully as if they were unmarried; and upon judgments recovered against them, execution may be issued as if they were unmarried; nor shall any husband be liable upon any contract made by his wife in her own name and upon her own responsibility, nor for any tort committed separately by her out of his presence, without his participation or sanction." And by section 20 of article 45 of the Code (section 19A, c. 633, Acts 1900) it is also pro The defendant filed a demurrer to the bill, and assigned two grounds as cause of demurrer: First, that the plaintiff is the lawful wife of the defendant, as alleged in the bill, and cannot sue her husband; and, sec-vided thatond, that no express promise is alleged in the bill to repay or to refund the moneys alleged to have been taken possession of by the defendant. [1] It has long been settled in this state "A married woman may contract with her husband or with any other person or persons in the same manner as if she were a feme sole, and upon all such contracts, partnership or otherwise, a married woman may sue and be sued as fully as if she were a feme that the relation of debtor and creditor may In Wilson v. Wilson, 86 Md. 638, 39 Atl. 276, decided on January 5, 1898, it was said the weight of authority seems to be that either the husband or wife can sue the other in equity for protection of his or her property. In Masterman v. Masterman, 129 Md. 176, 98 Atl. 537, decided on June 23, 1916, it is distinctly said there would seem to be no doubt about the right of the wife to sue the husband in equity. Section 5 of article 45 authorizes married women to sue for the recovery, security, or protection of their property, and, if section 20 of that article be not It was clear, we think, both under the Code and upon the authorities that have been cited, that even prior to the passage of the acts of 1898 and 1900, now sections 5 and 20 of article 45 of the Code, that either the wife or the husband could sue the other and maintain an action in a court of equity for the protection of his or her property. It seems also now well settled, upon a proper construction of sections 5 and 20 of article 45 of the Code, set out herein, that a married woman in this state may sue for the recovery, security, or protection of her property as fully as if she were unmarried, either in a court of equity or in a court of law, and she may also be sued separately upon her contracts and for wrongs independent of contract committed by her as fully as if she were a feme sole. |