(115 A.)

[4, 5] The court's rulings on the second, | 3. Criminal law 1044-Objection to verdict third, fifth, sixth, and seventh exceptions were both erroneous and prejudicial.

not raised in court below by motion in arrest or otherwise not reviewed.

An objection that a verdict is invalid because it does not discriminate between a count in an indictment charging robbery and that accusing defendant of receiving stolen goods, where such question was not raised below by motion in arrest or other method, will not be reviewed on appeal.

[6] The question asked Charles C. Wilson, superintendent of the melting furnaces of the Carpenter Steel Company, to whom the shells were resold by appellant, viz. "Did your examination disclose any defect which would render the shells unsuitable for your purposes?" was too broad. They might have been unsuitable for his purposes for other reasons than those as to which appellant had a right to complain. The objection to this question, the ruling on which was the basis of the fourth exception, was properly sus-sault, and receiving stolen goods, and he aptained. peals. Affirmed.

[7] The objection urged by appellee that only part of the shells were returned by appellant, and that there was no evidence of any difference between those used and those returned, is not material to the decision of the questions before us, however important it might be as bearing upon the good faith of appellant.

Appeal from Circuit Court, Baltimore County; Walter W. Preston, Judge.

Frank Novak was convicted of robbery, as

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and OFFUTT, JJ.

Albert S. J. Owens, of Baltimore (Louis Samuels and Saul A. Harris, both of Baltimore, on the brief), for appellant.

Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen., and H. Courtenay Jenifer, State's Atty., of Towson, on the brief), for the State.

This is clearly a divisible contract. The price of the goods was not a lump sum for the five carloads, but $25 per ton; and there is nothing in the record to show that the price per ton depended upon the quantity or- URNER, J. The appellant was tried, condered, or that appellee was in any way in-victed, and sentenced under an indictment jured by the failure of appellant to return containing four counts, which charged that all the shells. Nor is there any evidence he, together with George D. Jenkins, Howard from which such injury can be inferred. Mc-E. Dorsey, and Crilley D. Bell, on August 14, Ceney v. Duvall, 21 Md. 166; Benjamin on 1920, in Baltimore county, (1) robbed a cerSales (6th Eng. Ed.) p. 503; Elliott on Con- tain Harrison Crowell of 1,296 quarts of tracts, § 5114. whisky belonging to Zucker-Steiner & Co., (2) Judgment reversed, and new trial award- assaulted Harrison Crowell with intent to ed, with costs to appellants.

(139 Md. 538)

NOVAK V. STATE. (No. 37.) (Court of Appeals of Maryland. Dec. 1, 1921.) 1. Criminal law 293-Plea of former acquittal, addressed to whole indictment, must be answer to each count to be good as against demurrer.

A plea of former acquittal addressed to the whole of an indictment must be a sufficient answer to each count of the indictment in order to be held good as against demurrer.

2. Criminal law 200 (8)-Former acquittal for robbery and assault on S. not bar to prosecution for assault on C., although both arose from same transaction.

An indictment charging robbery and assault and battery on C. is good as against a plea of former acquittal under an indictment charging robbery and assault and battery on S., and that the two offenses may be attributable to the same occasion does not entitle defendant to rely on his acquittal of an assault on S. as a bar to prosecution for similar attack on C.

rob him of certain goods and chattels of Zucker-Steiner & Co., (3) assaulted and beat Harrison Crowell, and (4) unlawfully received certain stolen goods and chattels of Zucker-Steiner & Co. An important question in the case is whether the court below properly sustained a demurrer by the state to a plea of former acquittal filed by the defendant. In substance the plea states that the defendant was tried and acquitted under an indictment containing four counts, which charged that he, together with George D. Jenkins, Howard E. Dorsey, and Crilley D. Bell, on August 14, 1920, in Baltimore county, (1) robbed a certain Walter Sklon of 1,296 quarts of whisky belonging to ZuckerSteiner & Co., (2) assaulted Walter Sklon with intent to rob him of certain goods and chattels of Zucker-Steiner & Co., (3) assaulted and, beat Walter Sklon, and (4) unlawfully receivered certain stolen goods and chattels of Zucker-Steiner & Co. The plea alleges that the evidence produced at the trial under the indictment just referred to showed that William Harrison Crowell and Walter Sklon were in charge of a truck loaded with 250 cases of liquor belonging to Zucker-Steiner & Co. and had a breakdown on the Belair

road in Baltimore county, on or about August I have been wholly insufficient to implicate him 14, 1920, and were then and there robbed of in the robbery of Sklon for which he was the liquor. It is further stated in the plea tried in the former case. As suggested by that the robbery described in the offense to the Attorney General in his brief, the eviwhich both of the indictments refer, and that dence in the first trial may have shown that the acquittal of the defendant on all the the two men in charge of the disabled truck counts of the indictment previously tried were at some distance from each other, and precludes his trial under the present indict-were assaulted separately, and "the identity ment, which is said to differ from the other of the accused as one of those who attacked only in the substitution of the name of Harrison Crowell for that of Walter Sklon as the person upon whom the assault and robbery were committed.

(115 A.)

will not allow such a question to be raised in [ this court."

It was held in Standard Horseshoe Co. V. O'Brien, 88 Md. 335, 41 Atl. 898, that, while the verdict was irregular yet, as no motion in arrest of judgment had been filed, the question could not be made the subject of appellate review.

None of the evidence produced at the trial below is set forth in the record, and we are therefore not informed as to whether any of it related to the count which charged the defendant with receiving stolen goods. In 16 C. J. 1108, note, it is said:

"One cannot be convicted of robbery and also of receiving the goods which were the subject of the robbery; and where the evidence leaves it in doubt of which of these offenses defendant is guilty a general verdict of guilty must be set aside. Tobin v. People, 104 Ill. 565; Commonwealth v. Haskins, 128 Mass. 60."

ADKINS, J. Hester Catherine Baker, by

her will probated in the orphans' court of Baltimore county, bequeathed to her daughter, the appellee, $400, and devised and bequeathed the residue of her estate, real and personal, to her nephews, the appellants. Appellee filed a caveat to the will, to which the executor and the appellants filed an

The evidence in the case at bar may have been directed exclusively to the robbery count of the indictment, and that relating to the receipt of stolen goods may have been ignored both by the prosecution and the defense as immaterial. If the general verdict was supposed to be improper because of the presence of the latter count in the indict-swers. Appellants also filed a petition allegment, the trial court could have determined the question in the light of the evidence upon which it rendered the verdict. A conviction on either the robbery count or that charging the receipt of stolen goods would support the sentence imposed. But, the question not having been raised below, we find no just reason, under the conditions presented, to make it the basis for the award of a new trial.

Judgment affirmed, with costs.

(139 Md. 598)

HOUSMAN et al. v. MEASLEY. (No. 65.) (Court of Appeals of Maryland. Dec. 2, 1921.)

Courts 201 Orphans' court determines whether caveator had interest in estate though involving validity of settlement con

tract.

Where a caveat was filed and also petition by the residuary legatees setting up a contract for settlement between the caveator and petitioners, the orphans' court by Code Pub. Gen. Laws, art. 93, § 235, had jurisdiction to determine whether the caveator had such an interest in the estate disposed of by will as to entitle her to have issues tried as to the va

lidity of the will, even though it involved ques

tions as to the validity of the contract set out.

ing that the caveator was debarred from caveating the will by an agreement of settlement or compromise between her and the petitioners, which agreement was as follows: "Petition of George M. Housman, Wilson Hous man and G. Orville Bull.

"(Filed 24th day of May, 1921.) "The petition of George M. Housman, Wilson Housman and G. Orville Bull respectfully represents:

"(1) That under the will of Hester C. Baker, late of Baltimore county, deceased, and duly admitted to probate in this honorable court on March 21, 1921, your petitioners are the residuary legatees and devisees of all the personal and real estate of the said deceased after the payment of the just debts and funeral expenses of said deceased and a legacy of five hundred ($500) dollars to Addie Blanche Measley, the daughter of said deceased.

"(2) Your petitioners are the nephews of said deceased, and after said will had been admitted to probate as aforesaid and complete inventories, both real and personal, including in this court by Isaac Shaver, the executor of the list of debts due the estate, had been filed said will, your petitioners entered into a written agreement with the said Addie Blanche Measley under the hands and seals of the parties thereto, dated April 1, 1921, supplemented by a further agreement under date of April 4, 1921; said agreements being as follows:

April, A. D. 1921, by George M. Housman, "This agreement, made this first day of

Wilson Housman and G. Orville Bull, parties of the first part, and Addie Blanche Measley, "Witness the said George M. Housman and

Appeal from Orphans' Court, Baltimore party of the second part. County.

(139 Md. 550)

(115 A.)

KLEIMAN v. ORION KNITTING MILLS. (No. 41.)

dozen pairs of stockings at $6 per dozen. The contract of sale provided that the articles purchased were to be shipped to the appellants at Baltimore in March, but it

(Court of Appeals of Maryland. Dec. 2, 1921.) also contained this provision:

I. Trial 420-Offering evidence after refusal to direct verdict for plaintiff waiver of motion.

Where, at trial, defendants asked a verdict on the ground that there was insufficient evidence to support plaintiff's claim, and after refusal offered evidence in support of their contention, they waived the exception to the ruling.

2. Sales 182(1)—Where sale contract specified "approximate" dates for delivery, delay of 49 days not sufficient, as matter of law, to justify cancellation.

"This order is not subject to cancellation except by agreement. Seller shall not be held liable for late or nondelivery caused by strikes, fires, or other causes beyond our control. The acceptance by railroad or other carrier shall constitute delivery. These goods shall not be returned, nor will allowance be made for any cause after five days from receipt. All terms of sale and deliveries are set forth on this copy of order. If not in exact accordance with conditions agreed upon, it must be returned for correction within five days from its receipt. This order is given and accepted subject to a limit of credit determinable at any time by manufacturer or seller. Delivery dates mentioned are approximate only."

The stockings were not shipped until May 19, 1920, and did not arrive at their destination until June 29, 1920.

Where a contract for the sale of stockings provided that "Delivery dates mentioned are approximate only," it could not be said, as a matter of law, in view of the shortage of labor and materials conceded by both parties, that a delay of 49 days in delivery warranted cancellation and refusal to accept; the word "approximate" meaning, literally, "near to," and In the meantime the appellants had receivin ordinary usage being equivalent to "about," ed from the appellee a bill for them, and in "a little more or less," "close," and its use ex-reply to that demand they wrote the appellee cluding the idea of definiteness and exactness. on May 31, 1920, that they would return "the [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Approximate-Approximately.]

3. Sales181 (9)-In action for goods sold evidence relating to conditions causing delayed shipment held admissible.

goods" as soon as they received them, because "the order was placed" for "March 1st" delivery and because they had never received an acknowledgment of it. To this letter the appellee replied that it had not shipIped the goods sooner because of labor trou

In action for goods sold, where the buyer bles, and that it had not acknowledged the canceled contract on account of delayed ship-order because it had been accepted by its ment, where the contract provided for approxi- duly accredited agent and no further acmate delivery dates, evidence by plaintiff's wit-knowledgment was needed. nesses describing conditions of labor, materials, and transportation was admissible; such facts being relevant to the issue as to whether the delay was unreasonable.

After some further correspondence between the parties, which failed to affect their respective positions, this suit was brought by the appellee for the purchase price of the stock

Appeal from Baltimore City Court; Wal-ings. The verdict and judgment being for ter I. Dawkins, Judge.

"To be officially reported."

the plaintiff, the defendants took this appeal. In addition to the facts to which we have referred, the uncontradicted evidence showed

Action by the Orion Knitting Mills, a cor- that the delay in shipment was due to a poration, against Joseph Kleiman and anoth-shortage of labor and material and to a coner, copartners. From judgment for plaintiff, defendants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCK. BRIDGE, ADKINS, and OFFUTT, JJ.

Augustus C. Binswanger, of Baltimore, for appellants.

gestion of transportation facilities, which prevented the appellee from securing supplies necessary for the manufacture of the articles sold to the appellants, and that all of these causes were beyond the appellee's control.

It also appeared that it was necessary for the appellants to have the goods ordered G. W. S. Musgrave, of Baltimore, for ap- "around the month of March, so that" they pellee.

could make immediate deliveries for the spring of the year, and that since they failed to receive the merchandise ordered from the appellee at that time they had to go out and buy other goods.

OFFUTT, J. The appellants, who are engaged in the city of Baltimore in the purchase and sale of cotton and woolen goods as "jobbers," on January, 15, 1920, ordered [1] The important question presented by from the appellee, a manufacturer of such the appeal is whether these facts were legalmerchandise located at Kinston, N. C., 60 ly sufficient to entitle the plaintiff to recov