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mortgagor that the insurance in question had been taken by the mortgagee at the expense and for the benefit of the mortgagor, as Well as for his own protection, pursuant to the clause in the mortgage which authorized the mortgagee so to do, the mortgagor would be entitled to have the avails of the policy applied for his benefit toward the discharge of his indebtedness. A further examination of the Subject, at the conclusion of the final hearing on an answer filed to the cross-bill, assures me that the above statement of the law, as recognized in this state, is accurate At the final hearing, no evidence Was introduced in behalf of cross-complainant, in Support of the averment of the Cross-bill to the effect that the insurance in question had been effected by the mortgagee in pursuance of the agreement contained in the mortgage, and no evidence WaS introduced in behalf of the defendants to the cross-bill upon that Subject. There is therefore an entire absence of any evidence to establish the fact that the insurance was effected by the mortgagee for the joint benefit of himself and his mortgagor, or at the mortgagor's expense, except the fact that the insurance Was, in amount, in excess of the amount due on the mortgage, and that the mortgage authorized the mortgagee to effect insurance at the expense of the mortgagor, in the event of the failure of the mortgagor to keep the premises insured. I am entirely Satisfied, under this condition Of the evidence, that the claim of CrOSS-complainant that the insurance was effected purSuant to the clause in the mortgage cannot be sustained. The clause in the mortgage gave to the mortgagee the option to take out insurance at the expense of the mortgagor, but did not compel him to do so. The mortgagee was at liberty to insure for the joint benefit of himself and his mortgagor at the expense of the mortgagor, or to insure at his OWn expense Solely for his own benefit; and it is impossible to indulge the inference that the mortgagee did insure at the expense or for the benefit of the mortgagor, in view of the fact that the insurance effected by the mortgagee was, by its terms, solely for his “mortgagee interest.” .  It was urged in behalf of cross-complainant, however, that, as the clause in the mortgage authorized the mortgagee to insure at the expense of the mortgagor, the mortgagee was denied the privilege of insuring in any other manner, and a line of cases decided by the New York Court of Appeals was cited in Support of that view; but I find nothing in the cases cited to Support that proposition. On the contrary, in Foster v. Van Reed, 70 N. Y. 19, 26 Am. Rep. 544, it is held that Such a provision in a mortgage does not prohibit or prevent an insurance by the mortgagee on his interest as mortgagee, at his own expense and in his OWIn behalf.
I entertain the view, therefore, that the failure on the part of the cross-complainant to eStablish as a fact that the insurance in question was placed by the mortgagee at the expense of the mortgagor, or for the benefit of the mortgagor, or in any manner, or for any purpose, other than that which appears upon the face of the insurance policies, is operative to defeat the relief sought by CrOSS-complainant. It follows that the inSurance companies, in whose behalf this suit for the foreclosure of the mortgage is brought, are entitled under the assignment Of the mortgage from the mortgagee to enforce the mortgage lien. I reach this concluSion independently of the fact that the policies of insurance contained a clause providing for subrogation in behalf of the insurance companies in case of loss. It is therefore unnecessary to here determine whether theSe proVisions for Subrogations, which Were annexed to the policies some days after the policies were issued, are effective.
I Will advise a decree pursuant to the prayer of the bill.
BRISCOE, J. The facts upon which the decision of this case must turn are so fully and clearly stated in an opinion by Judge Burke, Who decided this case in the COurt below, and set out in the record here, that we need not restate them but will transcribe them. On this appeal. They are as follows:
On the 24th of September, 1902, Mrs. Sadie C. Councilman filed a bill of complaint in this court against her husband, James B. Councilman, and otherS. The allegations Of this bill need not be examined. The bill appears among the proceedings in this cause. It prayed for the appointment of a receiver, for a decree declaring that Mr.S. Councilman was entitled to a lien for betterments of the property known as “Woodhome,” and that property be sold to Satisfy Said lien and also a mortgage thereon executed by James B. Councilman to her amounting to $72,500. Mr. Councilman, in addition to this m0rtgage, Was also indebted to his Wife in a large sum of money. This court appointed the Safe Deposit & Trust Company receiver of the property. Mrs. Councilman died in 1906, and Mr. William Sheppard Bryan, her executor, was made party plaintiff in her stead. Under her will the said Deposit & Trust Company was appointed trustee of her estate. On the 18th of March, 1907, this court deCreed that Mrs. Councilman had no lien by Way Of betterment On the fee-Simple interest in Woodhome; but reserved in the decree the question of the rights of the executor of Mrs. Councilman under the mortgage. This decree was affirmed in Bryan v. Councilman, 106 Md. 380, 67 Atl. 279. On the 18th of September, 1907, this court decided that under the rule in Shelly’s Case James B. Councilman under his uncle's will took a fee-Simple estate in Woodhome. It follows from this construction of the Will of James B. Councilman, the elder, that the mortgage Was a lien upon the fee-simple interest in that property. The mortgage being Overdue and in default, the Court paSSed a decree On the 1st day of October, 1907, for the sale of the mortgaged property, and appointed David G. McIntosh and Edward N. Rich trustees to make the sale. The trustees Were required by the decree “to bring into this court the money arising from Said Sale to be distributed under the direction of this court, after deducting the costs of this suit and such commisSiOnS to the Said truSteeS as the COurt Shall think proper to allow.” The trustees advertised the property at public sale, and offered it at public auction on November 14, 1907; but, receiving no satisfactory bid, they withdrew it. On the 29th of May, 1908, the trustees reported to the court as follows: “The trustees now report that they have received from Dr. Theodore COOk an Offer for the whole property, containing about two hun
MOORE V. COUNCILMAN
dred and twelve (212) acres, for $42,500, and upon the terms Set Out in a letter from Said Cook addressed to these trustees, under the date of May 27, 1908, which has been accepted by the trustees, subject to the approval of this court, and which letter is annexed hereto as part of this report. And these trustees respectfully recommend that the sale be ratified and confirmed by this court, the Sum named as a purchase price being the largest which these trustees have been able to get after Constant and repeated efforts made by themselves and by the Safe Deposit & Trust Company, all of which is respectfully submitted.” Exceptions Were filed to the Sale by the purchaser and Certain judgment Creditors. These exceptions were overruled and the sale was finally ratified, an appeal was taken from the Order Of the final ratification, and this Order Was affirmed in COOk V. COuncilman, 109 Md. 622, 72 Atl. 404. It appears from the facts stated that James B. Councilman had really no interest in the property. He had mortgaged it for a great deal more than it Sold for. The Only parties to the Cause Who had any real or Substantial interest in the property or in the proceeds Of the Sale were the creditors of James B. Councilman, and the executor and trustee of Mrs. Councilman's estate. In the proceedings to which we have referred Mr. Edward N. Rich represented James B. Councilman, the mortgagor, and Col. McIntosh appeared for the executor, and also for the trustee under the Will of Mi S. Councilman—the Safe Deposit & Trust Company. On the 5th Of March, 1909, Caleb J. Moore, doing business under the name and style of Moore & Walton, a licensed real estate broker, filed a petition in this case alleging: First. “That heretofore, to wit, in the month of February, in the year 1908, the defendant James B. Councilman, who was then in the city of Philadelphia, in the state of Pennsylvania, took up with Messrs. Bamberger Bros. & Co. of that city the matter of finding a purchaser for the real estate in these proceedingS mentioned; that the said firm of Bamberger Bros. & Co., who were then engaged as real estate brokers in the city of Philadelphia aforesaid, took up with Messrs. Shriver, Bartlett & Co., of Baltimore City, in the state of Maryland, the matter of finding a purchaser for Said property; that the said Shriver, Bartlett & Co., being engaged in the commercial collection business, solicited the services of your petitioner, who was then and is now a licensed real estate broker, to find a purchaser for said property.” Second. “That, pursuant to the Solicitation Set forth in the preceding paragraph of this petition, your petitioner offered the said property for sale to several persons, and among the persons to whom he offered the property for Sāle was Dr. Theodore Cook, Sr., Who shortly thereafter became the purchaser of said property at and for the Sum or price of $42,500; that the trustees in these proceedings reported to this honorable court the sale aforesaid, which sale has since been finally ratified and confirmed.” Third. “That your petitioner Was the procuring cause of the aforesaid sale to Dr. Cook, and is therefore entitled to receive the usual commissions of 5 per cent. On the purchase price of Said farm, or the Sum of $2,125.” The petition then prays that an order be passed allowing that sum out of the funds in the hands of the trustees in these proceedings. Mr. Bryan, as executor, the Safe Deposit & Trust Company, trustees, and Col. McIntosh, as trustee, filed answers to this petition. The answer Of the eXecutor is aS followS: “(1) That he knows nothing of his personal knowledge of the matters alleged in the petition of Caleb J. Moore, and therefore requires clear and full proof of every matter of fact alleged therein. “(2) This respondent, as executor of Sadie C. Councilman, holds the mortgage for the Satisfaction of which the property in these proceedings mentioned was sold to Dr. Theodore Cook, and is therefore entitled to the entire net proceeds of the sale of Said property after deducting therefrom the proper costs Of the sale. “(3) This respondent not only never conSented to the employment of the Said Caleb J. Moore, but, so far as this respondent can recall, never even heard of said Moore in any connection whatever until after the petition here being answered was filed. “(4) This respondent is advised, believes, and therefore charges that James B. Councilman, the mortgagor, had no authority to employ the petitioner herein or any other broker or agent to secure a purchaser for the property Sold in these proceedings on Such terms that the petitioner, or any other broker or agent, should be compensated for his services out of the portion of the proceeds of the sale of Such property which are required to pay the mortgage debt and costs of the proceeding; and that, therefore, even if the allegations in the petition, if true, Would be taken to give the petitioner, Moore, a claim of any sort against James B. Councilman, the mortgagor, they are Without avail to give the petitioner any claim against this respondent, the executor of the mortgagee, or against any one claiming through or under this reSpondent. “(5) This respondent is advised, and therefore charges, that it was not within the power of any person without first being authorized by an Order of this Court to make a valid contract to employ the said Caleb J. Moore to perform any services in connection with the sale of the property before the Court in these proceedings for which services said Moore was to be compensated out of the proceeds of the sale of said property. “(6) This respondent &n information and belief denies that the said Caleb J. Moore
Cook's agreeing to purchase said property; and this respondent on information and belief alSO denies that the Said Caleb J. Moore had anything to do with inducing Dr. Cook to make an offer to purchase the property in this proceeding mentioned.” The answer of the Safe Deposit & Trust Company, trustee, accepts the answer of William S. Bryan, Jr., executor of Mrs. Councilman. The answer of Col. McIntosh, trustee, is as follows: “This respondent in reporting the sale of the property in question to this Court With his Cotrustee WaS not cognizant of any claim for commissions which had or could be made on account of the sale of said property, and therefore no reference Was made thereto in Said report. This respondent does not admit any authority on the part of James B. Councilman to employ brokers for the Sale of the property in question, the said Messrs. Bamberger Bros. & Co. of Philadelphia, or Messrs. Shriver, Bartlett & Co. of Baltimore City, or the said petitioner, Caleb J. Moore, and this respondent never had any communication With the Said James B. Councilman in reference to a Sale of the property, did not represent him in the proceedings, and had no communication with either or any of the brokers claimed to have been engaged in offering the property for sale, and did not employ them or either of them to make the sale. And this respondent So far as his knowledge goes denies that the purchaser Theodore Cook, Sr., was induced to buy the same through the instrumentality of either or any of said brokers, and he denies that the petitioner is entitled to commissions claimed by him out of the proceeds of sale reported to this court.” Upon the pleadings as thus Stated testimony was taken in open court, and from an order of the circuit court for Baltimore county dated on the 9th day of June, 1910, refusing and disallowing commissions to the appellant and dismissing the petition, this appeal has been taken. The rules and principles of law controlling broker's commissions for the sale of real estate established by this court have been settled by a number of recent adjudged cases, and it Will only be necessary to refer to a few of them as supporting the general principle announced by all of them. Hollyday V. Southern Agency, 100 Md. 296, 59 Atl. 646; Walker v. Baldwin, 106 Md. 632, 68 Atl. 25; Blake v. Stump, 73 Md. 160, 20 Atl. 788, 10 L. R. A. 103; Keener v. Harrod, 2 Md. 70, 56 Am. Dec. 706. The complete answer, however, to the appellant's contention in this case is that the facts as disclosed by the record do not bring the case within a single principle asserted by the adjudged cases. The trustees who were appointed by the court deny that they employed him to make the sale, and they are here resisting his application. The executor, Mr. Bryan,
Ord. Col. David G. McIntosh, one of the trustees in his testimony, in Support of his answer, testified in answer to the following interrogatories: “Q. 2. Will you please tell his honor Whether or not you ever in any Way directly or indirectly employed Mr. Moore or Bamberger or any other real estate broker for the purpose of selling this Councilman property? State further everything you did in the matter in a narrative form. A. I never employed or was privy to the employment of Dr. Cook or Bamberger in this meeting— Mr. Bryan: You mean Mr. Moore or Bamberger. Witness: Yes; Mr. Moore. And I do not think I ever heard Mr. Moore's name called until long after the Sale, and probably when this petition was filed it was a surprise to me. The Court: The petition for fee? Witness: Petition for commission; yes, sir. Mr. Rich is correct, I think, in stating that Bamberger's name was mentioned at a meeting at the Safe Deposit Company, but I do not understand from my recollection that there was any discussion as his language Would imply about commisSiOnS; and I am pretty distinct that after a long interview about the terms of the Sale, because there were a number of propositions embraced in it, and We Went back Wards and for Wards OVer those With Dr. Cook, that after all that had been gotten through with and our minds had finally been pulled together to the acceptance or agreement to accept his offer a question was asked, as I recollect, incidentally, ‘How about Commissions? Is there any commission? I think that was asked by Mr. Marshall. And the reply was made instantly—I think it Came from Dr. Cook—“No, there will be no question about CommissionS.’ And the propriety of reporting the Sale With CommisSions was not considered by me at all. Forty-two thousand five hundred dollars was, we thought, a very low figure; and I am unable to say what the effect of adding commissions or subtracting commissions out of that Would have been. I had been engaged trying to sell the property to other parties, and I never knew of Cook—I mean, yeS, Cook—until a short time previous. I heard it through the Safe Deposit Company. I never heard of this claim of Moore or of Bamberger as having anything to do with the sale. I think that is all I have to say.” By an agreement of counsel, it was admitted that Mr. Edward N. Rich, the cotrustee, WOuld testify: “I had no conversation With any One representing Bamberger Bros. &
MOORE V. COUNCILMAN
Co. until after the sale to Dr. Cook when I saw the agent—I think Mr. Moore—and I deny any liability for commissions.” [1, 2] It is quite clear from the correspondence contained in the record that Mr. Rich did not intend to employ or recognize the authority of the petitioner to make the Sale, and, even if this be conceded, it would not bind his cotrustee, Col. McIntosh, so as to affect the fund. Latrobe W. Tiernan, 2 Md. Ch. 480; Sewall v. Costigan, 1 Md. Ch. 208; Cohen v. Wagner, 6 Gill, 236. It is not ShOWn that Mr. James B. Councilman had any authority whatever to represent the trustees to bind the fund here, and it does not appear that he had any Substantial interest in the property. In Carroll V. Manganese Safe Co., 111 Md. 256, 73 Atl. 665, Judge Schmucker in delivering the opinion Of the Court Said, in Order to recover under the facts in that case for services, it WaS necessary for the party to prove also either that in making the agreement in respect to compensation he acted on behalf of the appellee with express or implied authority for that purpose, or that the agreement was Subsequently adopted or ratified by the appellee, or its fruits accepted with knowledge of the Circumstances Of their acquisition. AS in that case, so in this, the record failed to supply legally sufficient evidence of proper authority on the part of the alleged agent or ratification of his acts by the defendant, and there was no recovery. The cases of Tyson V. Mickle, 2 Gill, 377, Gray V. Lynch, 8 Gill, 404, and numerous Other Cases from other jurisdictions relied upon by the appellant and cited in his brief, rest upon an entirely different principle, and are not applicable here.  In the case of Richards v. Jackson, 31 Md. 250, 1 Am. Rep. 49, it was distinctly held that it is not Sufficient that the broker should produce a person who enters into an agreement to purchase, but he must actually
purchase by complying with the terms agreed
upon unless his failure to do so is occasioned by the default of the vendor. The following Cases are in full accord With those we have cited: Attrill v. Patterson, 58 Md. 251; Melvin v. Aldridge, 81 Md. 658, 32 Atl. 389; Leopuld V. Weeks, 96 Md. 288, 53 Atl. 937; Martien v. Baltimore, 109 Md. 268, 71 Atl. 966; Slagle v. Russell, 114 Md. 418, 80 Atl. 164. For the reasons stated, we are in entire accord with the conclusion reached by the learned judge Who decided this case in the court below, and we therefore affirm the Order appealed from. Order affirmed, With costs.
(115 Md. 638) LAUREL CANNING CO. OF PRINCE GEORGE'S COUNTY V. BALTIMORE & O. R. CO. (Court of Appeals of Maryland. June 22, 1911.) 1. CourTs ($ 78*)—RULES OF COURTS-POWER TO ADOPT-CONTRARY TO LAW. A court cannot adopt court rules contrary to a constitutional provision or a statute, unless, in the latter case, in pursuance of the Constitution, and cannot by that means deprive a litigant of a right secured by law. [Ed: Note-For other cases, see Courts, Cent. Dig. §§ 276-281; Lec. Dig. $ 78.*] 2. CourTs (§ 79*)–CoNSTITUTIONAL LAw ($ 321*)—RULES OF COURT-ABATEMENT OF ACTIONS-REAsoNABLENEss of RULEs. A court rule adopted by the circuit court of a county not containing any very large city and having four terms of court a year, requiring the transfer to the stet docket of all cases on the trial and appeal dockets, and undisposed of for four successive terms, and providing that a case shall abate after being on the stet docket for four continuous terms, is reasonable, and not prohibited by the Declaration of Rights, art, 19, giving every man a remedy for injury, and entitling him to justice without denial or delay, or article 20, providing that the trial of facts is one of the greatest securities of the lives and estates of the people.
[Ed. Note.—For other cases, see Courts, Dec. Dig. § 79;” Constitutional Law, Cent. Dig. §§ 950-955; Dec. Dig. § 321.*] 3. TRIAL (§ 11*)—DoCKETS-REMOVAL FROM STET DOCKET-DUTY OF DEFENDANT. If plaintiff permits a case to remain on the Stet docket for a length of time which will abate it under the court rules, defendant is not bound to have it removed to the trial docket to save it from abatement.
[Ed. Note.—For other cases, see Trial, Dec. Dig. $ 11.*]
Appeal from Circuit Court, Howard County; Wm. Henry Forsythe, Jr., Judge.
Action by the Laurel Canning Company of Prince George's County against the Baltimore & Ohio Railroad Company. From an order refusing to transfer the case from the stet docket to the trial docket, plaintiff appeals. Affirmed.
Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, PATTISON, and URNER, J.J.
R. R. BOarman and James J. Lindsay, for appellant. James A. C. Bond and Francis Neal Parke, for appellee.
BOYD, C. J. This is an appeal from the ruling of the lower court in refusing to transfer the case from the Stet docket to the trial docket Of that court for the March term, 1910. The court held that the case had abated under one of its rules, which is aS follows: “The clerk shall prepare and keep a stet docket and shall enter thereon, at the end of each term of court, all such causes from the trial and appeal dockets as shall have been thereon undisposed of for four successive terms. That after a case Shall have remained On Said Stet dOCket for four continuous terms it shall abate, and
no further action shall be had thereon; but any case may, before it so abates, be transferred from the Stet docket to the trial docket for the ensuing term of court, provided notice that application for such transfer will be made at the first day of the ensuing term of court be given in writing by the party desiring such transfer, or his attorney, to the opposite party, or his attorney, one month before the commencement of said ensuing term, and if such case be transferred, and shall not be tried and disposed of at Said ensuing term of court, it shall at the end of the said term abate, and no further action Or proceeding Shall thenceforth be had therein.” The record is not very satisfactory, as the docket entries do not show the date the case was placed on the stet docket, although they do show that the record of it was transmitted from the circuit court for Montgomery county on May 31, 1906, and the notice of application to have it transferred from the Stet docket to the trial docket was not given until February 8, 1910. The bill of exceptions also states that the court had before it as evidence at the hearing of the petition the two dockets containing the records of the proceedings, which showed the time the clerk had entered the case upon the stet docket, and it is not claimed by the appellant that the court did not act in accordance with the rule, but, on the contrary, it is contended that it did SO act under a rule which could not be validly adopted. ASSuming then, as We must, that the Court followed the terms of the rule, there was a period of nearly three years after the case was put on the stet docket before the plaintiff even asked to have it put on the trial docket; and, although the record does not show when it was originally instituted, it was nearly four years from the time it was placed on the docket in the Howard county court before the application was made. It is apparent, therefore, that the plaintiff was not exhibiting any great anxiety to have its constitutional right of trial by jury, of which it now claims it has been deprived, Very Speedily asserted. As there are four terms of court each year, and the rule allows a case to remain on the trial docket four Successive terms, and then on the stet docket for four terms, the parties have about two years in which to try a case after it reaches the trial docket before it abates. It may be that in a very large city ordinary suits may not always be reached for trial in that time, but there can be no possible danger of such conditions in a county of the size of Howard. It was suggested at the argument that the judges may be Sick, or for some such reason the parties could not have a case tried Within the time named in the rule, although they were not responsible for the delay, but no such conditions were