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The principal questions before us for reView are presented by a single exception, and they appear from the rulings of the court, in granting the defendants' motion at the close of the testimony upon both sides to Strike Out the testimony of the Witness Garrettson, which had been admitted in the course of the trial subject to exceptions, and in granting the defendants' Six prayerS. [1] In the view We take of the case, the ruling of the court upon the motion to Strike out the Witness GarrettSon's testimony becomes unimportant, because neither its admission or rejection would reflect upon the conclusion We have reached upon the record before uS. Nor do we deem it necessary to discuss or consider all the questions presented by the Very able and carefully prepared brief of the counsel for the appellant, because we are of the opinion that the court below was entirely right, upon the whole proof, in granting the defendants' first prayer, which instructed the jury that there was no legally Sufficient evidence under the pleadings in this case to show an indebtedness by the defendant to the plaintiff under its bond, and their Verdict must be for the defendant. The substantial facts, as disclosed by the record, appear to be as follows: The contract price for the Work, materials, construction, and erection of the church was $52,550, and was to be paid in four payments only upon the certificate of the architect, the first three of $11,750 to be paid as one-fourth, one-half, and three-fourths of the work was completed, and the remaining fourth and final payment of $17,300 was to be made within 30 days after the architect had certified that the entire work contemplated by the contract had been wholly completed and the building turned over by the contractors to the owner, and before each of the payments the architect should also certify in Writing that all the work upon the performance of Which the payment was due had been done to his entire satisfaction. It appears from the evidence that the first, Second, and third payments under the contract was paid by the appellant to the contractors upon certificates of the architect. On December 20, 1905, the appellant wrote the appellee the following letter: “Gentlemen: Messrs. David M. Andrew and George H. Thomas have this day notified us that they have completed the work under their contract with us dated December 16, 1904, for the faithful performance of which you are Surety, see bond No. 173,826. We hereby give you due notice as provided in lines 53, 54 and 55 of said bond that we will make the last payment due Messrs. Andrew and Thomas under said contract in about thirty days from this date. Yours very truly, By Charles T. Bagby, President.” On January 1, 1906, the appellants took

church purposes until the 1st day of March, 1907, When the ceiling of the main auditorium of the church was condemned by the inSpector of buildings of Baltimore as a menace to the Safety of persons and property, in that the plastering on the ceiling was cracked all over, very loose, and portions of it had already fallen. It appears that the final payment, amounting to $18,776.16, was paid the contractors on the 1st day of February, 1906, as shown by their receipt: “Baltimore, Md., February 1, 1906. Received of the Trustees of the Seventh Baptist Church of Baltimore eighteen thousand, seven hundred and Seventy-Six dollars and Sixteen CentS in full settlement of all claims and demands growing out of or connected With the erection of the church at St. Paul Street and North avenue and remodeling the chapel in the rear thereof under contract dated the 16th day of December, 1904, or otherwise. This receipt is to cover all charges for extra Work. David M. Andrew. Geo. H. ThomaS. Teste as to both: S. Scott Beck.” While this payment was made without the final written certificate of the architect, he testified that he gave his approval of the plastering and reported that the plastering Was a first-class job and was done in accordance with the contract. The original Specifications, as to plastering, provided for the use of lime mortar plaster; but this was changed by the subcontractor, Litzinger, With the approval of the architect to What is known as ivory or hard wall plaster, being a patent plaster with a sand coat finish. There was no specification for the installation of the patent plaster, and this change or alteration of the contract was made without the written order of the owner, and Without the consent of the surety. By the fifth paragraph of the contract, it was provided “that no alteration should be made in the work shown or described by the dra Wings and Specifications except upon the Written order of the owner, and such addition or omission in the work required by the OWner Shall be carried out by the contractors without making void or in any manner affecting the contract.” The substantial ground of the plaintiffs' action here is that the patent plaster had not been mixed according to the manufacturer's directions, by the Subcontractor, and that it fell for this reason. While the plaintiffs' testimony tended to show that there was too much Sand put in the plaster, it failed to ShOW that the contractors Were responsible for the defective condition of the plastering. On the contrary, the evidence shows that the roof of the church WaS Supported by tWO 70foot trusses of Wood, which ran from the front of the church to the rear of the church, and Which Were Supported at each end by steel columns. These trusses had sunk and “had to be jacked up” and tightened before the plastering could be replaced.

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alteration and change of the contract Without the Written order of the OWner Would bind the contractors in this case, it was not made in a manner to bind the appellee, because the bond guaranteed the installation of lime mortar plaster called for by the Contract and specifications, and not that of a different character of plaster, a patent plaster, such as was adopted and put in the church. In Wehr V. St. Matthews Cong., 47 Md. 177, it is said it is perfectly well settled that a surety has the right to Stand upon the Very terms of his contract, and, if Such Contract be altered or varied in any material point without his consent, so as to constitute a new agreement varying Substantially from the Original, he is no longer bound. In Plunkett v. Sewing Machine Co., 84 Md. 532, 36 Atl. 115, it was Said the liability of a Surety Or a guarantor is Created entirely by his contract. It is therefore strictly confined and limited to his COntract. NO material change can be made in them without his Consent. [3] All CourtS have maintained that his responsibility cannot be extended by Construction beyond the limits which he has himself fixed. Leppert V. Flaggs, 101 Md. 74, 60 Atl. 450; George V. Andrews, 60 Md. 26, 45 Am. Rep. 706; Lake v. Thomas, 84 Md. 608, 36 Atl. 437; Schaeffer V. Bond, 72 Md. 501, 20 Atl. 176; Mayhew V. Boyd, 5 Md. 102, 59 Am. Dec. 101; McConnell V. Poor, 113 Iowa, 133, 84 N. W. 968, 52 L. R. A. 312; Gibbs V. Girardville, 195 Pa. 396, 46 Atl. 91. [4] Besides this, it Will be seen that by paragraph 4 of the contract the decision of the architect, On all matterS referred to him, Should be final and conclusive. In this case the architect gave his approval of the plastering. He testified, “I did make a report, stating that the plastering was well executed and a very nice looking piece of Work.” Mr. Bagby, the chairman of the board of trustees of the plaintiff church, testified that: “The architect reported, except as to Some Small matters, that the entire work had been done to his satisfaction. He reported that the plastering Was a first-class job and had been done in accordance with the agreement.” There was no allegation or proof of fraud, Collusion, or mistake on the part of the architect as to his action in this regard, and his report was accepted as conclusive, at the time of the completion of the building and of the final payment by the appellant, that the work had been performed according to the contract. The building WaS accepted by the trustees and used for church purposes until the 1st day of March, 1907, When the ceiling Of the main auditorium Of the church WaS COndemned by reason of the defective condition of the plastering. It was

WANNENWETSCH v. MAYOR AND CITY COUNCIL OF BALTIMORE 3

not until the 19th day of March, 1907, that notice was given the appellee of the alleged breach of the contract and a demand to have the plastering replaced. We think, upon the whole record, the case was devoid of legally sufficient evidence to permit the plaintiff to recover under the pleadings and evidence in the case, and the case was properly withdrawn from the jury by the defendants' first prayer. As this conclusion disposes of the case, it Will not be necessary for us to pass upon the other granted prayers or the other questions presented on the record. For the reasons stated, the judgment Will be affirmed, With COStS.

(115 Md. 446) WANNEN WETSCH et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

(Court of Appeals of Maryland. April 5, 1911.)

1. TAxATION (§ 453*)—AssESSMENT-REVIEW —JURISDICTION OF COURTS. Under Laws 1908, c. 167, which re-enacts and amends Baltimore Charter (Laws 1898, c. 123) $170, and provides that, on an appeal from an assessment to the city court, the court shall hear the cause de novo, and the action of the appeal tax court shall not be held void for any reason if due notice of the proceedings shall have been given, the city court is required to declare assessments and classifications Void When made Without due notice, so that One whose property has been assessed without due notice is not entitled to come into equity to have the assessment declared Void, having a clear remedy at law. [Ed. Note.—For other cases, see Taxation, Cent. Dig. $809; Dec. Dig. § 453.”] 2. TAXATION (§ 363*) – ASSESSMENTS – MoDE OF ASSESSMENT—NOTICE—DUE NOTICE. Due notice required by Baltimore Charter (Laws 1898, c. 123). § 170, as amended and reenacted in Laws 1908, c. 167, to sustain the validity of an assessment, need not be personal notice, the leaving of a notice at the house which is the subject of taxation being sufficient. [Ed. Note:-For other cases... see Taxation, Cent. Dig. §§ 603–606; Dec. Dig. § 363.*]

Appeal from Circuit Court of Baltimore City; Alfred S. Niles, Judge. '

Suit by Mary Wannenwetsch and others against the Mayor and City Council of Baltimore and Others. From a decree dismissing the bill, complainants appeal. Affirmed.

Argued before BOYD, C. J., and BRISCOE, PEARCE, PATTISON, and URNER, J.J.

S. S. Field, for appellants. W. H. De C. Wright, for appellees.

PEARCE, J. This appeal is from an order Or decree of the circuit court of Baltimore city dismissing a bill for an injunction. against the mayor and city council of Baltimore city and Frank Brown, collector of state and city taxes for Baltimore city, restraining them from collecting taxes at the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes

full city rate upon the properties of the SéVeral plaintiffs, and requiring them to accept from the plaintiffs city taxes at the rate of 60 cents in each hundred dollars for the years 1909 and 1910. [1] The bill alleges that all of the properties of the several plaintiffs mentioned in the proceedings are located in a block in that part of Baltimore city which was annexed thereto by Acts 1888, c. 98, and that said block contains more than 200,000 Superficial Square feet, and up to the year 1909 Was not surrounded by Streets improved as required by Acts 1902, c. 130, and that up to and until the year 1909 all said properties Were classified for taxation for city purposes under said last-mentioned act at 60 cents on the $100, and all those allegations are established by the undisputed evidence. The bill then further charges that said properties were classified for the years 1909 and 1910 at the full city rate of $1.95 in the $100, and that Such Classification by the appeal tax court of Baltimore city was illegal and void, both because Said block Was not Subject to such classification, and because the same was made without any notice to any of the plaintiffs, and that none of the plaintiffs knew Such Classification had been made until after the time allowed by section 170 of the city charter (Acts 1908, c. 167) for appeal to the Baltimore city court. The appellants concede they would have had an adequate remedy at law for the alleged wrongful classification by the appeal thus provided, if due notice of the purpose to make Such classification had been given them, but allege that the Want of due notice rendered the classification Void, and entitles them to relief in equity. To Sustain this contention, they rely upon the case of Baltimore City v. Poole & Son Co., 97 Md. 67, 54 Atl. 681, decided in 1903. In that Case both the assessment and the classification of the plaintiffs' property had been changed, and the bill alleged that InO notice Of either purpose had been given to the plaintiff. Sections 150 (Laws 1898, c. 123) and 164A (Laws 1900, c. 347) of the city charter expressly required notice to the owner as respects assessments, but there was then no statutory declaration of the power of the appeal tax court to classify property, nor any statutory regulations of the proCedure for the purpose of classification So as to determine when property in the annexed part of the city was brought within those COnditions Of the annexation actS Which would permit its taxation at the full city rate. There Was a demurrer to the bill which was sustained by the circuit court, and its decree was affirmed here on appeal, this court holding that the prescribed notice as to assessment and reasonable notice as to classification Was necessary to give jurisdiction to the appeal tax court. It was contended by the city in that case that, under section 170 of the city charter,

jurisdiction.”

obtained knowledge of the increased assessment and Of the classification bringing the property within the full city rate of taxation, had the right then to ask from the appeal tax Court an abatement of the assessment and the restoration of the property to the 60-cent rate for city taxes, and that, upon itS refusal to make the abatement Or to Order the restoration of the 60-cent rate, he could appeal within 30 days from such refusal to the Baltimore city court, and, thus having a clear legal remedy, that he could not resort to equity for relief. But we held that section 170, as it then stood, had no relation to the jurisdiction of the appeal tax court, whose jurisdiction was absolutely dependent as to the assessment upon the giving of the notice prescribed in Sections 150 and 164A, and as to the classification, upon the giving of reasonable notice, and that Section 170 had no relation to Void aSSeSSments Or classificationS. We Said Section 170 “deals With questions arising after a valid, though erroneous, assessment has been made. The remedy against an invalid assessment, one made Without jurisdiction to make it, is to strike it down, though the result may be to lose the taxes for that year. The remedy against an aSSeSSment valid as an (188688mont, but illegal because of the manner in which it was made, or erroneous because of under or over valuation, is by application recognizing the jurisdiction to assess, but attacking the legality or regularity of the form of the proceedings under the conceded AS the demurrer in that CàSe conceded the jurisdictional defect of want of notice, and the charter contained no proviSion authorizing the appeal tax court Or the Baltimore city Court to declare an aSSeSSment to be null and void, but only “to reduce or abate” it, We held that relief against a Void assessment could only be obtained in equity, and we consequently affirmed the deCree of the circuit court. But section 170 Of the charter has been repealed and re-enacted by chapter 167 of the Acts of 1908 with some very material changes, in consequence of which the city now renews the Contention made by it in the Poole Case, Supra, and in considering this contention it will be necessary carefully to compare the Original With the amended Section. One obvious purpose of that act, disclosed by a cursory reading, was to give statutory recognition to the power of classification which in Poole's Case we said the appeal tax court must be held to possess; also, to place classification and assessment upon the Same footing as respects procedure, and hence Whenever the Word “assessment” is mentioned in the original section the word “classification” is coupled with it in the amended Section. Another purpose Of the act of 1908 was to enlarge the power of the Baltimore city court on appeals from the appeal tax court, and to define more Clearly

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The person or the city appealing to the said Baltimore city Court shall have a trial before the court without the intervention of a jury, and the court Sitting Without a jury shall ascertain or decide on the proper assessment, and shall not reject or set aside the record of the proceedings of the judges of the Said appeal tax court for any defect or omission in either form or Substance, but shall amend or supply all such defects or omissions, and assess, increase or reduce the amount of the aSSeSSment, and alter, modify and correct the record of proceedings in all or any of its parts as the said

Baltimore city court shall deem just and DTOper.

Amended Section.

The person or the city appealing to the said Baltimore city Court Shall have a trial before the court Without the intervention of a jury, and the court sitting without a jury, shall hear the case de movo, and shall ascertain and decide on the proper assessment or classification of the property for the year involved in the appeal ; and neither the action, nor the record of the proceedings of the judges of the appeal taa: court in the premises Shall be held to be Or declared void for any reaSOn What SOeVer; proVided due notice of the proceedings shall have been given to the parties entitled by said judges of the appeal tax court; and the Said Baltimore

city court shall assess anew, or classify anew, as the case may be, the property forming the subject of the appeal : provided however that in the absence of any affirmative evidence to the contrary, the assessment or classification appealed

from shall be affirmed. Chapter 167 of 1908 is a remedial statute designed to effect a complete system for the correction of all errors in assessing and classifying property in Baltimore city, and to accomplish this with the least possible delay and expense both to the city and to the taxpayer, and it should be liberally construed to effect the purpose of its enactment. This purpose can plainly be best attained by conferring upon a single tribunal jurisdiction over the whole field covered by the text of Section 170. Under the original section, only a Court of equity Could declare an aSSeSSment or classification to be null and void (no power being conferred upon the Baltimore city Court to that end), and, when so declared by a court of equity, it was necessary to go back again to the appeal tax court, and there have another aSSeSSment or classification made. Under the amended section 170, the Baltimore city court on appeal is required to try the case de novo, and by the clearest and Strongest implication is authorized and required to declare assessments and classifications to be null and void when made without previous due notice to the owners or per80ms entitled thereto. No other rational Construction can be placed upon the language of the amended section, which forbids that “neither the action or the record of the proceedings of the judges of the appeal tax court shall be held to be, or declared, void for any reason Whatever; provided due notice of the proceedings shall have been given to the parties entitled,” than that such record may and

WANNENWETSCH v. MAYOR AND CITY COUNCIL OF BALTIMORE 5

shall be declared void, when due notice has not been given. Unless such construction is given to that language, the Baltimore city court could not proceed, as directed in the next sentence, “to assess or classify anew.” the property in question. A new assessment or classification can only be made When the old one has been superseded as void. The only object of a bill in equity in such a case as that before uS is to have the aSSeSSment or classification declared to be null and void, and, if the Baltimore city court is authorized SO to declare upon the same State of facts as has heretofore been required in a Court of equity, there can be no occasion to resort to a court of equity. The same language which in giving complete jurisdiction to a court of law created a clear legal remedy took away the right to resort to equity. Our conclusion, therefore, is that upon the ground just considered the decree of the circuit court Should be affirmed. Chapter 167 of 1908 was before us in the case of Mayor and City Council of Baltimore v. Hurlock, 113 Md. 674, 78 Atl. 558, decided November 16, 1910, and published in the Daily Record of November 23, 1910. The only contention there made was that the assessment was unequal as compared with other property of the same kind in the Same neighborhood, and that the property WaS overvalued; the appeal in that case being from rulings of the Baltimore city Court. In the course of the opinion in that case, referring to the same language of section 170 as amended Which is transcribed herein, it Was Said: “NO assessment Can be declared void, but the city court must assess the property in question anew.” This obviously meant that no merely irregular Or erroneOuS assessment such as was there complained of could be declared Void; the qualification contained in the amended Section, “proVided due notice of the proceedings shall have been given to the parties entitled by said judges of the appeal tax court,” being inadvertently omitted, as not involved in that case. This will appear from a later passage in the same opinion where it was said that the object of the section as amended was to “avoid a total failure of any assessment such as occurred in Consolidafed Gas Co. v. Baltimore, 101 Md. 559 [61 Atl. 532, 1 L. R. A. (N. S.) 263, 109 Am. St. Rep. 584], and would occur under the original section 170 whenever it beCame neceSSary to Set aSide an aSSeSSment appealed from.” [2] It does not appear from the opinion of the learned judge below what view he took of the ground upon which we have placed our affirmance of his decree, as he decided the case upon other grounds, holding that “due notice” does not necessarily mean that notice should be personally served in the process of taxation, and that the notices Which in this case Were left at each house, which was the subject of taxation constituted due notice, and that, therefore, the plain

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PATTISON, J. In this case the appellee, plaintiff below, filed his bill alleging that he was the owner, in fee simple, of a lot of land in Baltimore city, situated at the corner formed by the intersection of the west side Of Central avenue and the Southeast Side of Gay street that he had acquired from one Jane J. Murray by deed dated September 13, 1905.

The bill alleges that Jane J. Murray acquired title to this property by written agreement executed on the 2d day of December, 1885, by the said Jane J. Murray and her three sisters, who were at the time owners of Said lands as tenants in common. The agreement was executed and acknowledged by them with all the formalities required in the execution and acknowledgment of deeds, and was duly recorded, and is as follows: “We, the undersigned, daughters of the late Peter and Elizabeth Murray, named and Subscribed to this instrument Of Writing, do enter into an agreement that for the benefit of each and all of them named and Subscribed to this agreement and are now living in and owners jointly the property being their joint interest left them, Lucy A. Murray,

Ann Murray, Sarah A. Crawford and Jane J. Murray, as heirs of the above Peter and Elizabeth Murray, property situated on the Southwest corner of Gay and Canal Streets (now Central avenue) the object of this is that in case that if by death should take one of the parties, the other three Sisters are the OWhers, and if two are taken by death, then the two remaining sisters are the owners, and if by death one of the tWO Sisters is taken then the last Surviving Sister is the owner, and in order to carry faithfully this agreement, We hereunto Set Our hands and Seals and Subscribe our names this second day of December, in the year eighteen hundred and eighty five.” The bill further alleges that the three Sisters all died in the lifetime of Jane J. Murray, leaving her Surviving them, the owner, as it alleges, of Said property under and by Virtue of Said agreement, and that she died on the 26th of January, 1908. The bill also alleges that Said property for a long time prior to the acquisition of it by the plaintiff was occupied by him and was in his possession at the time of the filing of the bill; that at the time Of the death of the Said Jane J. Murray she was seised of the property adjoining the property so acquired by him, which was alSO embraced in the property mentioned and described in the agreement above mentioned, signed by the Said Jane J. Murray and her Sisters aforesaid, and which her heirs, after her death, agreed to sell to the North Gay Street Permanent Building & Loan ASSociation of Baltimore City, but, upon examination, the purchaser was not satisfied with the title of Jane J. Murray thereto, its objection being based upon the sufficiency of the agreement above given to pass title to her in said lands, and proceedings were instituted in the circuit court for Baltimore City “for the Sale of Said property and the ratification of the contract of sale to the said corporation, which proceedings have long Since been completed and the title of Said adjoining property conveyed to the said corporation.” As the legal sufficiency of the title of Jane J. Murray in and to the lands sold as aforesaid had been questioned, the plaintiff thought it best, as he alleges, to have executed to him by the heirs of Jane J. Murray a confirmatory deed for the property so conveyed unto him by her as aforesaid. To this end he called upon the heirs to execute the confirmatory deed, and all of them executed the same except the defendants, Who refused to do so. It Was then that he determined to file the bill asking the court, as he did, to construe said agreement, and by its decree “remove any cloud which might exist or be supposed to exist” upon his title to said lands. The defendants Mary J. Murray and William A. Murray answered, stat

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