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mortgagor that the insurance in question had I entertain the view, therefore, that the been taken by the mortgagee at the expense failure on the part of the cross-complainant and for the benefit of the mortgagor, as well to establish as a fact that the insurance in as for his own protection, pursuant to the question was placed by the mortgagee at clause in the mortgage which authorized the the expense of the mortgagor, or for the mortgagee so to do, the mortgagor would be benefit of the mortgagor, or in any manner, entitled to have the avails of the policy ap- or for any purpose, other than that which plied for his benefit toward the discharge of appears upon the face of the insurance polhis indebtedness. A further examination of icies, is operative to defeat the relief sought the subject, at the conclusion of the final by cross-complainant. It follows that the hearing on an answer filed to the cross-bill, insurance companies, in whose behalf this assures me that the above statement of the suit for the foreclosure of the mortgage is law, as recognized in this state, is accurate brought, are entitled under the assignment

At the final hearing, no evidence was in of the mortgage from the mortgagee to entroduced in behalf of cross-complainant, in force the mortgage lien. I reach this conclusupport of the averment of the cross-bill to the sion independently of the fact that the poleffect that the insurance in question had icies of insurance contained a clause providbeen effected by the mortgagee in pursuance ing for subrogation in behalf of the insurof the agreement contained in the mortgage, ance companies in case of loss. It is thereand no evidence was introduced in behalf of fore unnecessary to here determine whether the defendants to the cross-bill upon that these provisions for subrogations, which were subject. There is therefore an entire absence annexed to the policies some days after the of any evidence to establish the fact that the policies were issued, are effective. insurance was effected by the mortgagee for

I will advise a decree pursuant to the praythe joint benefit of himself and his mortga-er of the bill. gor, or at the mortgagor's expense, except the fact that the insurance was, in amount, in excess of the amount due on the mortgage,

(115 Md: 629) and that the mortgage authorized the mort

MOORE v. COUNCILMAN et al. gagee to effect insurance at the expense of (Court of Appeals of Maryland. June 22, the mortgagor, in the event of the failure of

1911.) the mortgagor to keep the premises insured. 1. BROKERS (8 86*)—COMMISSIONS–EVIDENCE I am entirely satisfied, under this condition -EMPLOYMENT. of the evidence, that the claim of cross-com Evidence in a broker's action for commisplainant that the insurance was effected pur

sions for procuring a purchaser for property to suant to the clause in the mortgage cannot tee appointed to make the sale did not employ

be sold on foreclosure held to show that a trusbe sustained. The clause in the mortgage petitioner to effectuate a sale or recognize his. gave to the mortgagee the option to take out authority to sell. insurance at the expense of the mortgagor,

[Ed. Note.--For other cases, see Brokers, Dec. but did not compel him to do so. The mort | Dig. $ 86.*] gagee was at liberty to insure for the joint 2. MORTGAGES (8 507*)-FORECLOSURE-PRObenefit of himself and his mortgagor at the

CURING PURCHASER.

One trustee appointed to sell property on expense of the mortgagor, or to insure at his foreclosure could not bind his cotrustee, so as own expense solely for his own benefit; and to charge the proceeds of the sale with commisit is impossible to indulge the inference that sions, by his individual agreement to employ a the mortgagee did insure at the expense or

broker to effectuate the sale. for the benefit of the mortgagor, in view of Dec. Dig. $ 507.*]

[Ed. Note.-For other cases, see Mortgages, the fact that the insurance effected by the mortgagee was, by its terms, solely for his 3. BROKERS (8 60*)--COMMISSIONS-SALE-NE

CESSITY. "mortgagee interest."

To entitle a broker to commissions, the [3] It was urged in behalf of cross-com- purchaser procured must actually purchase upplainant, however, that, as the clause in the on the terms agreed, unless his failure to do so mortgage authorized the mortgagee to insure is caused by the vendor's fault. at the expense of the mortgagor, the mortgagee Cent. Dig. § 91; Dec. Dig. $ 60.*]

[Ed. Note. For other cases, see Brokers, was denied the privilege of insuring in any other manner, and a line of cases decided by Appeal from Circuit Court, Baltimore the New York Court of Appeals was cited in County, in Equity; N. Charles Burke, Judge. support of that view; but I find nothing in Petition by Caleb J. Moore against James the cases cited to support that proposition. B. Councilman and others, filed in proceedOn the contrary, in Foster v. Van Reed, 70 ings involving the sale of mortgaged land, N. Y. 19, 26 Am. Rep. 544, it is held that for brokers' commissions for effectuating the such a provision in a mortgage does not pro- sale. From an order dismissing the petition, hibit or prevent an insurance by the mort. petitioner appeals. Affirmed. gagee on his interest as mortgagee, at his Argued before BOYD, C. J., and BRISCOE, own expense and in his own behalf.

PEARCE, PATTISON, and URNER, JJ.

Md.)

MOORE v. COUNCILMAN

123

J. Kemp Bartlett and Charles Lee Merri- , dred and twelve (212) acres, for $42,500, and ken, for appellant. Col. D. G. McIntosh and upon the terms set out in a letter from said William S. Bryan, Jr, for appellees.

Cook addressed to these trustees, under the

date vf May 27, 1908, which has been acceptBRISCOE, J. The facts upon which the ed by the trustees, subject to the approval of decision of this case must turn are so fully this court, and which letter is annexed hereand clearly stated in an opinion by Judge to as part of this report. And these trustees Burke, who decided this case in the court respectfully recommend that the sale be ratibelow, and set out in the record here, that fied and confirmed by this court, the sum we need not restate them but will transcribe named as a purchase price being the largest them on this appeal. They are as follows: which these trustees have been able to get

On the 24th of September, 1902, Mrs. Sadie after constant and repeated efforts made by C. Councilman filed a bill of complaint in themselves and by the Safe Deposit & Trust this court against her husband, James B. Company, all of which is respectfully submitCouncilman, and others. The allegations of ted.” Exceptions were filed to the sale by this bill need not be examined. The bill ap- the purchaser and certain judgment credipears among the proceedings in this cause. tors. These exceptions were overruled and It prayed for the appointment of a receiver, the sale was finally ratified, an appeal was for a decree declaring that Mrs. Councilman taken from the order of the final ratification, was entitled to a lien for betterments of the and this order was affirmed in Cook v. Counproperty known as "Woodhome," and that cilman, 109 Md. 622, 72 Atl. 404. property be sold to satisfy said lien and also It appears from the facts stated that James a mortgage thereon executed by James B. B. Councilman had really no interest in the Councilman to her amounting to $72,500. property. He had mortgaged it for a great Mr. Councilman, in addition to this mort deal more than it sold for. The only parties gage, was also indebted to his wife in a large to the cause who had any real or substansum of money. This court appointed the tial interest in the property or in the proSafe Deposit & Trust Company receiver of ceeds of the sale were the creditors of James the property. Mrs. Councilman died in 1906, B. Councilman, and the executor and trustee and Mr. William Sheppard Bryan, her ex- of Mrs. Councilman's estate. In the proceedecutor, was made party plaintiff in her stead. ings to which we have referred Mr. Edward Under her will the said Deposit & Trust Com- N. Rich represented James B. Councilman, pany was appointed trustee of her estate. the mortgagor, and Col. McIntosh appeared On the 18th of March, 1907, this court de- for the executor, and also for the trustee uncreed that Mrs. Councilman had no lien by der the will of Mis. Councilman—the Safe way of betterment on the fee-simple interest Deposit & Trust Company. On the 5th of in Woodhome; but reserved in the decree March, 1909, Caleb J. Moore, doing business the question of the rights of the executor of under the name and style of Moore & Walton, Mrs. Councilman under the mortgage. This a licensed real estate broker, filed a petition decree was affirmed in Bryan v. Councilman, in this case alleging: First. “That hereto106 Md. 380, 67 Atl. 279. On the 18th of Sep- fore, to wit, in the month of February, in the tember, 1907, this court decided that under year 1908, the defendant James B. Councilthe rule in Shelly's Case James B. Council man, who was then in the city of Philadelman under his uncle's will took a fee-simple phia, in the state of Pennsylvania, took up estate in Woodhome. It follows from this with Messrs. Bamberger Bros. & Co. of that construction of the will of James B. Coun- city the matter of finding a purchaser for the cilman, the elder, that the mortgage was a real estate in these proceedings mentioned; lien upon the fee-simple interest in that prop- that the said firm of Bamberger Bros. & Co., erty. The mortgage being overdue and in de- who were then engaged as real estate brokers fault, the court passed a decree on the 1st in the city of Philadelphia aforesaid, took up day of October, 1907, for the sale of the mort with Messrs. Shriver, Bartlett & Co., of Balgaged property, and appointed David G. Mc- timore City, in the state of Maryland, the Intosh and Edward N. Rich trustees to make matter of finding a purchaser for said propthe sale. The trustees were required by the erty; that the said Shriver, Bartlett & Co., decree “to bring into this court the money being engaged in the commercial collection arising from said sale to be distributed un- business, solicited the services of your petider the direction of this court, after deduct- tioner, who was then and is now a licensed ing the costs of this suit and such commis real estate broker, to find a purchaser for sions to the said trustees as the court shall said property." Second. "That, pursuant to think proper to allow.” The trustees adver- the solicitation set forth in the preceding tised the property at public sale, and offered paragraph of this petition, your petitioner it at public auction on November 14, 1907; offered the said property for sale to several but, receiving no satisfactory bid, they with persons, and among the persons to whom he drew it. On the 29th of May, 1908, the trus- offered the property for sale was Dr. Theot.ees reported to the court as follows: "The dore Cook, Sr., who shortly thereafter betrustees now report that they have received came the purchaser of said property at and from Dr. Theodore Cook an offer for the for the sum or price of $42,500; that the whole property, containing about two hun-trustees in these proceedings reported to this

honorable court the sale aforesaid, which | Cook's agreeing to purchase said property; sale has since been finally ratified and con- and this respondent on information and befirmed." Third. "That your petitioner was lief also denies that the said Caleb J. Moore the procuring cause of the aforesaid sale to had anything to do with inducing Dr. Cook Dr. Cook, and is therefore entitled to receive to make an offer to purchase the property the usual commissions of 5 per cent. on the in this proceeding mentioned.” purchase price of said farm, or the sum of The answer of the Safe Deposit & Trust $2,125."

Company, trustee, accepts the answer of WilThe petition then prays that an order be liam S. Bryan, Jr., executor of Mrs. Counpassed allowing that sum out of the funds in cilman. The answer of Col. McIntosh, trusthe hands of the trustees in these proceed- tee, is as follows: "This respondent in reings.

porting the sale of the property in quesMr. Bryan, as executor, the Safe Deposit tion to this court with his cotrustee was & Trust Company, trustees, and Col. McIn- not cognizant of any claim for commissions tosh, as trustee, filed answers to this petition. which had or could be made on account of The answer of the executor is as follows: the sale of said property, and therefore no

“(1) That he knows nothing of his personal reference was made thereto in said report. knowledge of the matters alleged in the peti. This respondent does not admit any authortion of Caleb J. Moore, and therefore re- ity on the part of James B. Councilman to quires clear and full proof of every matter of employ brokers for the sale of the propfact alleged therein.

erty in question, the said Messrs. Bamberger "(2) This respondent, as executor of Sadie Bros. & Co. of Philadelphia, or Messrs. C. Councilman, holds the mortgage for the Shriver, Bartlett & Co. of Baltimore City, satisfaction of which the property in these or the said petitioner, Caleb J. Moore, and proceedings mentioned was sold to Dr. Theo- this respondent never had any communicadore Cook, and is therefore entitled to the en- tion with the said James B. Councilman in tire net proceeds of the sale of said property reference to a sale of the property, did not after deducting therefrom the proper costs represent him in the proceedings, and had of the sale.

no communication with either or any of the (3) This respondent not only never con- brokers claimed to have been engaged in sented to the employment of the said Caleb offering the property for sale, and did not J. Moore, but, so far as this respondent can employ them or either of them to make the recall, never even heard of said Moore in sale. And this respondent so far as his any connection whatever until after the pe- knowledge goes denies that the purchaser tition here being answered was filed.

Theodore Cook, Sr., was induced to buy the "(4) This respondent is advised, believes, same through the instrumentality of either and therefore charges that James B. Coun- or any of said brokers, and he denies that cilman, the mortgagor, had no authority to the petitioner is entitled to commissions employ the petitioner herein or any other claimed by him out of the proceeds of sale broker or agent to secure a purchaser for the reported to this court.” property sold in these proceedings on such Upon the pleadings as thus stated testiterms that the petitioner, or any other bro- mony was taken in open court, and from an ker or agent, should be compensated for his order of the circuit court for Baltimore counservices out of the portion of the proceeds of ty dated on the 9th day of June, 1910, rethe sale of such property which are requir- fusing and disallowing commissions to the ed to pay the mortgage debt and costs of the appellant and dismissing the petition, this proceeding; and that, therefore, even if the appeal has been taken. allegations in the petition, if true, would be The rules and principles of law controlling taken to give the petitioner, Moore, a claim broker's commissions for the sale of real esof any sort against James B. Councilman, tate established by this court have been setthe mortgagor, they are without avail to tled by a number of recent adjudged cases, give the petitioner any claim against this re- and it will only be necessary to refer to a spondent, the executor of the mortgagee, or few of them as supporting the general prinagainst any one claiming through or under ciple announced by all of them. Hollyday this respondent.

v. Southern Agency, 100 Md. 296, 59 Atl. (5) This respondent is advised, and there-646; Walker V. Baldwin, 106 Md. 632, 68 fore charges, that it was not within the pow- Atl. 25; Blake v. Stump, 73 Md. 160, 20 Atl. er of any person without first being author- 788, 10 L. R. A. 103; Keener v. Harrod, 2 ized by an order of this court to make a Md. 70, 56 Am. Dec. 706. The complete anvalid contract to employ the said Caleb J. swer, however, to the appellant's contention Moore to perform any services in connec- in this case is that the facts as disclosed tion with the sale of the property before the by the record do not bring the case within a court in these proceedings for which services single principle asserted by the adjudged said Moore was to be compensated out of cases. The trustees who were appointed by the proceeds of the sale of said property. the court deny that they employed him to

“(6) This respondent on information and make the sale, and they are here resisting belief denies that the said Caleb J. Moore his application. The executor, Mr. Bryan,

Md)

MOORE v. COUNCILMAN

125

yes, sir.

or consented to his employment to make the Co, until after the sale to Dr. Cook when sale. His testimony is confirmatory of the I saw the agent-I think Mr. Moore—and I answer filed by him and set out in the rec- deny any liability for commissions." ord.

[1, 2] It is quite clear from the correspondCol. David G. McIntosh, one of the trus-ence contained in the record that Mr. Rich tees in his testimony, in support of his an- did not intend to employ or recognize the swer, testified in answer to the following in authority of the petitioner to make the sale, terrogatories: "Q. 2. Will you please tell his and, even if this be conceded, it would not honor whether or not you ever in any way bind his cotrustee, Col. McIntosh, so as to directly or indirectly employed Mr. Moore affect the fund. Latrobe v. Tiernan, 2 Md. or Bamberger or any other real estate bro- Ch. 480; Sewall v. Costigan, 1 Md. Ch. 208; ker for the purpose of selling this Council-Cohen v. Wagner, 6 Gill, 236. It is not man property? State further everything you shown that Mr. James B. Councilman bad did in the matter in a narrative form. A. any authority whatever to represent the I never employed or was privy to the em-trustees to bind the fund here, and it does ployment of Dr. Cook or Bamberger in this not appear that he had any substantial inmeeting- Mr. Bryan: You mean Mr. Moore terest in the property. In Carroll v. Manor Bamberger. Witness: Yes; Mr. Moore. ganese Safe Co., 111 Md. 256, 73 Atl. 665, And I do not think I ever heard Mr. Moore's Judge Schmucker in delivering the opinion name called until long after the sale, and of the court said, in order to recover under probably when this petition was filed it was the facts in that case for services, it was a surprise to me. The Court: The petition necessary for the party to prove also either for fee? Witness: Petition for commission; that in making the agreement in respect to

Mr. Rich is correct, I think, in compensation he acted on behalf of the apstating that Bamberger's name was men- pellee with express or implied authority for tioned at a meeting at the Safe Deposit Com- that purpose, or that the agreement was subpany, but I do not understand from my sequently adopted or ratified by the appellee, recollection that there was any discussion as or its fruits accepted with knowledge of the his language would imply about commis circumstances of their acquisition. As in sions; and I am pretty distinct that after a that case, so in this, the record failed to long interview about the terms of the sale, supply legally sufficient evidence of proper because there were a number of proposi- authority on the part of the alleged agent or tions embraced in it, and we went back ratification of his acts by the defendant, and wards and forwards over those with Dr. there was no recovery. The cases of Tyson Cook, that after all that had been gotten V. Mickle, 2 Gill, 377, Gray v. Lynch, 8 Gill, through with and our minds had finally been 404, and numerous other cases from other pulled together to the acceptance or agree- jurisdictions relied upon by the appellant ment to accept his offer a question was ask- and cited in his brief, rest upon an entirely ed, as I recollect, incidentally, 'How about

different principle, and are not applicable commissions? Is there any commission ? Į

here. think that was asked by Mr. Marshall. And

[3] In the case of Richards v. Jackson, 31 the reply was made instantly—I think it came from Dr. Cook—No, there will be no held that it is not sufficient that the broker

Md. 250, 1 Am. Rep. 49, it was distinctly question about commissions.' And the propriety of reporting the sale with commis- should produce a person who enters into an sions was not considered by me at all. agreement to purchase, but he must actually Forty-two thousand five hundred dollars purchase by complying with the terms agreed was, we thought, a very low figure; and I upon unless his failure to do so is occasion

The folam unable to say what the effect of adding ed by the default of the vendor. commissions or subtracting commissions out lowing cases are in full accord with those of that would have been. I had been engag- we have cited: Attrill v. Patterson, 58 Md. ed trying to sell the property to other par- 251; Melvin v. Aldridge, 81 Md. 658, 32 Atl. ties, and I never knew of Cook I mean, 389; Leopuld v. Weeks, 96 Md. 288, 53 Atl. yes, Cook-until a short time previous. 1937; Martien v. Baltimore, 109 Md. 268, 71 heard it through the Safe Deposit Company. Atl. 966; Slagle v. Russell, 114 Md. 418, 80 I never heard of this claim of Moore or of Atl. 164. Bamberger as having anything to do with For the reasons stated, we are 'in entire the sale. I think that is all I have to say.” accord with the conclusion reached by the By an agreement of counsel, it was admit- learned judge who decided this case in the ted that Mr. Edward N. Rich, the cotrustee, court below, and we therefore affirm the would testify: "I had no conversation with order appealed from. any one representing Bamberger Bros. & Order affirmed, with costs.

(115 Md. 638)
LAUREL CANNING CO. OF PRINCE

no further action shall be had thereon; but GEORGE'S COUNTY V. BALTI.

any case may, before it so abates, be transMORE & O. R. CO.

ferred from the stet docket to the trial docket

for the ensuing term of court, provided no(Court of Appeals of Maryland. June 22, 1911.) tice that application for such transfer will 1. COURTS (8 78*)-RULES OF COURTS-POWER be made at the first day of the ensuing term TO ADOPT-CONTRARY TO LAW. A court cannot adopt court rules contrary

of court be given in writing by the party to a constitutional provision or a statute, unless, desiring such transfer, or his attorney, to in the latter case, in pursuance of the Consti- the opposite party, or his attorney, one month tution, and cannot by that means deprive a liti- before the commencement of said ensuing gant of a right secured by law.

[Ed. Note.-For other cases, see Courts, Cent. term, and if such case be transferred, and Dig. 88 276-281; Dec. Dig. g 78.]

shall not be tried and disposed of at said 2. COURTS (8 79°)–CONSTITUTIONAL LAW (8 ensuing term of court, it shall at the end of 321*)-RULES OF COURT-ABATEMENT OF AC- the said term abate, and no further action TIONS-REASONABLENESS OF RULES.

A court rule adopted by the circuit court or proceeding shall thenceforth be had there of a county not containing any very large city in.” The record is not very satisfactory, as and having four terms of court a year, requir- the docket entries do not show the date the

of on the trial and appeal dockets, and undisposed case was placed on the stet docket, although of for four successive terms, and providing that they do show that the record of it was transa case shall abate after being on the stet docket mitted from the circuit court for Montgomfor four continuous terms, is reasonable, and not ery county on May 31, 1906, and the notice prohibited by the Declaration of Rights, art. 19, giving every man a remedy for injury, and of application to have it transferred from entitling him to justice without denial or delay, the stet docket to the trial docket was not or article 20, providing that the trial of facts given until February 8, 1910. The bill of is one of the greatest securities of the lives and exceptions also states that the court had beestates of the people.

[Ed. Note. For other cases, see Courts, Dec. fore it as evidence at the hearing of the petiDig. $ 79;* Constitutional Law, Cent. Dig. 88 tion the two dockets containing the records 950-955; Dec. Dig. $ 321.*]

of the proceedings, which showed the time 3. TRIAL (8 11*)-DOCKETS-REMOVAL TROM the clerk had entered the case upon the stet STET DOCKET-DUTY OF DEFENDANT.

docket, and it is not claimed by the appelIf plaintiff permits a case to remain on the lant that the court did not act in accordance stet docket for a length of time which will abate it under the court rules, defendant is not bound with the rule, but, on the contrary, it is to have it removed to the trial docket to save it contended that it did so act under a rule from abatement.

which could not be validly adopted. [Ed. Note.For other cases, see Trial, Dec. Dig. & 11.*]

Assuming then, as we must, that the court

followed the terms of the rule, there was a Appeal from Circuit Court, Howard Coun- period of nearly three years after the case ty; Wm. Henry Forsythe, Jr., Judge.

was put on the stet docket before the plainAction by the Laurel Canning Company of tiff even asked to have it put on the trial Prince George's County against the Balti-docket; and, although the record does not more & Ohio Railroad Company. From an show when it was originally instituted, it order refusing to transfer the case from the was nearly four years from the time it was stet docket to the trial docket, plaintiff ap- placed on the docket in the Howard county peals. Affirmed.

court before the application was made. It Argued before BOYD, C. J., and BRIS-is apparent, therefore, that the plaintiff was COE, PEARCE, BURKE, PATTISON, and not exhibiting any great anxiety to have URNER, JJ.

its constitutional right of trial by jury, of R. R. Boarman and James J. Lindsay, for which it now claims it has been deprived, appellant. James A. C. Bond and Francis very speedily asserted. As there are four Neal Parke, for appellee.

terms of court each year, and the rule al

lows a case to remain on the trial docket BOYD, C. J. This is an appeal from the four successive terms, and then on the stet ruling of the lower court in refusing to docket for four terms, the parties have about transfer the case from the stet docket to the two years in which to try a case after it trial docket of that court for the March reaches the trial docket before it abates. It term, 1910. The court held that the case had may be that in a very large city ordinary abated under one of its rules, which is as suits may not always be reached for trial in follows: “The clerk shall prepare and keep that time, but there can be no possible dan. à stet docket and shall enter thereon, at ger of such conditions in a county of the the end of each term of court, all such size of Howard. It was suggested at the causes from the trial and appeal dockets as argument that the judges may be sick, or shall have been thereon undisposed of for for some such reason the parties could not four successive terms. That after a case have a case tried within the time named in shall have remained on said stet docket for the rule, although they were not responsible four continuous terms it shall abate, and for the delay, but no such conditions were

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