(108 A.) brother that he could have a conference with our predecessors have gone to protect parties, him and the family about them without ac- who had made purchases on the faith of such complishing anything, and then had his broth-contracts, from being imposed on by the seller as a witness to help to defeat the appellees from recovering the money for routes which his brother and former employé had taken possession of a few days after he claims to have turned them over to the appellees. In addition to that, he said in his letter of the 15th of April that he would continue to manage the business, and to see that the patrons would get the same goods of butter and eggs as before. The first day that the appellees undertook charge of the routes, without the employés of the defendant, they found those employés in charge for one of themselves, who claimed to own the routes; at least, that the defendant did not own them, and, although the defendant said he was to continue to manage the business, he did nothing but talk, and tell the appellees what he was willing to do. Hoey testified over and over again that those routes were never delivered to them, and that evidence is in the record without objection. As we have seen, the prayer does not refer to the pleadings, and hence there was no question whether such evidence was admissible under the pleadings. Indeed, it would be difficult to say that there was no evidence which tended to show that the defendant did not aid and abet his brother in his conduct, which, to say the least, was not such as reflects any credit on him. Mr. Wahl, one of the appellees, testified that the defendant told him he was going to sell, because his brother had become dissatisfied with the business, and was going out of the butter business; yet in five days after the defendant received the money from the plaintiffs the brother was at work with the former employé of the defendant in taking possession of the routes. The defendant said he did not lay much stress on the routes, but the appellees did; and Mr. Wahl testified that at the time of the purchase he valued them at one-third of the business, and later discovered that they were to be valued at one-half of it. [4] We have not thought it necessary to discuss the effect of a sale of the good will of a business. While good will will not be protected from the competition of a rival, and the mere fact that a brother of the seller is interfering does not necessarily mean that there has been a violation of a contract not to re-engage in the same business, yet if the business is carried on under another name, or by another person, or the name of such others is used as a mere cover or blind to conceal the interest of the seller, relief will be granted, provided it clearly appears that the seller is connected with the competing concern and aggressively acting with or for it, to the inju ry of the plaintiff. 12 R. C. L. 937, par. 11. Without quoting from them, we will refer to several Maryland cases, which show how far ers using the name of others. Davis v. Barney, 2 Gill & J. 382; Guerand v. Dandelet, 32 Md. 561, 3 Am. Rep. 164; Webb v. McCloskey 68 Md. 196, 11 Atl. 715. We, of course, do not mean to say that the appellant had any financial interest in Herbert's business; but from his conduct and all the circumstances it might be inferred that he was aiding him. But, regardless of that, we are of the opinion that there was sufficient evidence of a failure to deliver those routes, as the agreement contemplated, to justify the rejection of the prayer, and the judgment must be affirmed. Judgment affirmed; the appellant to pay the costs. (135 Md. 203) GALE V. KEECH et al. (No. 26.) (Court of Appeals of Maryland. Nov. 21, 1919.) DEVISE ACCORDING TO PROVISIONS DIRECTED Where a testator devised all the residue of his real and personal estate to his wife according to "provisions directed by law," the wife must be treated as having received a fee simple in the residue of the testator's realty; the inbeing sufficient to limit the estate to one for definite and inaccurate quoted expression not life or to the dower which she might be entitled to regardless of the will. Appeal from Circuit Court, Anne Arundel County, in Equity; Robert Moss, Judge. "To be officially reported." Suit by Georgetta Gale against Lillian S. Keech and Edward P. Keech, and Lillian S. Keech as trustee. From decree for defendants, complainant appeals. Affirmed. Argued before BOYD, C. J., and BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and ADKINS, JJ. James M. Munroe, of Annapolis, for appellant. URNER, J. The object of this proceeding is to obtain a judicial construction of the residuary clause of the will of George Gale, of Anne Arundel county, who died in the year 1856. After making two pecuniary bequests of $3,000 each, the will concludes as follows: "All the residue of estate real and personal I leave to my beloved wife Susan Matilda Gale according to the provisions directed by law." The testator died seized of a farm of 672 acres in Anne Arundel county, and it is the title to that property which is involved in For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the question now raised as to the construc- [ termination of her mother's dower. The tion of the residuary clause just quoted. case stated was heard by the late Judge I. Thomas Jones, afterwards a member of this court, and his opinion, filed March 12, 1892, thus disposes of the question of construction submitted for his determination: "I am of opinion that Mrs. Susan M. Gale took an absolute interest in the residue of both real and personal property. There does not seem to be room for any other construction. It seems entirely clear that the testator did not intend to die intestate as to any of his property, and he would have died intestate as to by far the major part of it, if, as suggested in the case stated, this clause of the will is to be held as be a widow's share of an intestate's estate. giving the wife only a life estate or what would The draughtsman of the will, here in question, does not appear to have been a very skillful one, but surely more apt terms would have been employed to give effect to testator's purpose if his instructions had been to make the will give to the wife only a life estate or a widow's share of the estate. It is hard to divine what significance in the draughtsman's mind attached to the words 'according to the provisions as direct The will is dated July 16, 1856, and the testator died within a few days after its execution. He was survived by his wife, who gave birth to their only child, a daughter, shortly after the father's death. The widow entered into possession of the real estate of her deceased husband, and on February 17, 1857, conveyed by deed an undivided twothirds interest in the farm, and a like proportion of the residue of the personal estate, to her father, Augustus Mathiot, in trust to apply the income thereof to the support and education of her daughter, Georgetta Mathiot Gale, until she arrived at the age of 21 years, any surplus income not required for the objects stated to be paid to the grantor, and after the daughter became 21 years of age it was provided that the whole of the income should be paid to her for life. The trust estate was limited in remainder to the issue of the daughter living at the time of her death, but in default of such issue, then to Susan M. Gale, the grantor, or to her heirs, personal representatives, or assigns. Subse-ed by law'; but there certainly appears to be quently, Mrs. Gale married Frederick Anspach, and this union resulted in the birth of a daughter, Lillian S. Anspach, who is now the wife of Edward P. Keech. The testator's daughter, Georgetta M. Gale, has never married. It appears from the record that his widow, Susan M. Gale, is now deceased; but the date of her death is not stated. Mrs. Keech is now trustee under the deed of trust by appointment of the circuit court for Anne Arundel county, in equity, under whose jurisdiction the trust has been administered. The deed of trust refers to the property conveyed as being part of the residuary estate devised and bequeathed to Mrs. Gale, the grantor, by the will of her husband, as her "own absolute property and estate in fee simple." In 1891, 34 years after the trust was created, a case stated between Georgetta M. Gale and Lillian S. Keech, individually and as trustee, was presented to the court having jurisdiction over the trust, for the purpose of having the residuary clause of the will of George Gale construed in so far as it affected the title to the real estate which the deed of trust purported to convey. The question of interpretation thus raised was whether the testator did not intend his widow to take merely such interests in the residue of his estate as were secured to her by statute. According to this theory, if adopted, it would be held that the widow took only a dower interest in the realty, and that the testator died intestate as to the remainder of the title, which thereupon descended to his daughter as his only heir at law. The effect of such a decision would be to render the deed of trust inoperative and to recognize Georgetta M. Gale as the sole scheme of the will, to treat them as words of no reason, and it would be contrary to the whole limitation upon the estate disposed of by the will. The most natural and obvious meaning to be given them is that the testator meant to conform to the provisions of law governing and regulating the formal execution of wills." No decree was ever passed by Judge Jones in pursuance of his opinion filed in the case, and no further action was taken to question the title devised to the testator's widow until the present proceeding was instituted for that purpose in November, 1918. It is upon a petition of Georgetta M. Gale and noncontesting answers of Lillian S. Keech and husband, and of Mrs. Keech as trustee, that the question is now raised. The case was heard in the court below by Judge Moss, who accepted the view previously announced by Judge Jones and passed a decree declaring that under the residuary clause of the will of George Gale his wife "took an absolute feesimple estate in all the residue of his property, real and personal." In that decision we concur. It is the only conclusion which can give effect to the evident intention of the testator to dispose of his whole estate. There may be difficulty in understanding what he meant by the subsequent words, "according to the provisions directed by law"; but the meaning of the language, "all the residue of estate, real and personal, I leave to my beloved wife," is perfectly clear and definite. The purpose thus plainly expressed by the testator to give his wife "all" of the residuary estate should be gratified unless the context unequivocally provides to the contrary. The phrase, "according to the provisions directed by law," as applied to a gift to the wife of the entire residue of the estate, comes far short of in (108 A.) C. Morris Harrison, of Baltimore, for appellant. J. Kemp Bartlett, Jr., and Guion Miller, both of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellees. receive only a part of the whole thus devised and bequeathed. Whatever the testator may have understood those words to mean, it is hardly to be supposed that he would have employed such an inadequate form of expression if he had desired to defeat the clear effect of the terms he had just BURKE, J. The appellant was employed used. As he may be presumed to have known as a baker by the Emerson Hotel Company. that his wife would not receive the "whole" The compensation paid him by the company of the residue of his estate "according to the was $50 per month and board. On July 1, provisions directed by law," independently 1917, his left hand was caught in a bread of his will, it may be reasonably assumed mixer, and he sustained injuries which in that this phrase had some other significance the judgment of the State Industrial Acin his mind, such, perhaps, as the one sug- cident Commission, hereinafter referred to gested by Judge Jones in his opinion. But as the commission, amounted to a "disability any interpretation of that expression is so un-partial in character, but permanent in qualavoidably conjectural that it could not safely ity," entitling him to an amount of compenbe given the effect of producing a specific sation equal to 50 per centum of his average weekly wages. reduction of the estate devised and be- (135 Md. 92) PICANARDI v. EMERSON HOTEL (Court of Appeals of Maryland. Nov. 13, 1919.) BOARD NOT INCLUDED AS PART OF WAGES. Under Workmen's Compensation Act 1914, c. 800, as amended by Acts 1916, c. 597, in jured employé of hotel company held not entitled to have money value of free board he received included as part weekly wages in computing amount of compensation to which he was entitled, money value of board not having been fixed between company and himself at time of hiring. There was no agreement between the appellant and the Emerson Hotel Company at the time of his employment fixing the money value of the board. He made application to the commission for compensation for his injuries. On January 16, 1918, the commission passed a final order upon his application, by which the Emerson Hotel Company, the employer, and the United States Fidelity & Guaranty Company, the insurer, were ordered to pay to the appellant compensation at the rate of $7.50 per week, payable weekly for the period of 150 weeks, for the loss of the use of his hand, said compensation to begin as of July 15, 1917, subject, however, to a credit of such amount, if any, as might have been paid under a previous order of the Commission. From this order the appellant appealed to the Baltimore city court, and from a judgment entered in favor of the defendants in that court the appeal before us was taken. contains three bills of exceptions. first and second exceptions were taken to the refusal of the court to permit the appellant: First, to prove the money value of the board per week, which he received from the hotel company; and, secondly, to prove generally The record The Appeal from Baltimore City Court; Car- the money value of that board. There was roll T. Bond, Judge. "To be officially reported." Proceedings under the Workmen's Compensation Act by Giovanni Picanardi, the employé, opposed by the Emerson Hotel Company, the employer, and the United States Fidelity & Guaranty Company, the insurer. Compensation was awarded by the Industrial Accident Commission subject to a credit, the award affirmed by the Baltimore city court on the employe's appeal, and from its judgment the employé appeals. Judgment affirmed. no disputed fact in the case, and at the close of the plaintiff's testimony the court instructed the jury that the appellant had offered no evidence legally sufficient to entitle him to recover, and that their verdict should be for the defendants. The granting of this prayer constitutes the third exception. It, therefore, appears that all the exceptions present but one question of law-a narrow question involving a construction of certain provisions of the Maryland Compensation Act of 1914, chapter 800, as amended by chapter 597, Acts of 1916. That question is this: Is a claimant entitled under the act Argued before BOYD, C. J., and BURKE, to have the money value of board included as THOMAS, URNER, and STOCKBRIDGE, a part of his weekly wages in computing the JJ. amount of compensation to which he may For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes be entitled, where the money value of the board had not been fixed between his employer and himself at the time of the hiring? Judge Bond, who presided at the trial in the lower court, filed a written opinion upon the question before him, and which is presented by the record for our decision. We insert here a portion of that opinion, as we regard the conclusion reached by him as a correct interpretation of the act upon the point involved. The references in his opinion are to certain sections in the act of 1914 (chapter 800): earlier sections concerning the making up of the state accident fund and the provision of adequate insurance. This is confirmed by the letter of the statute. In section 17 'percentage of pay roll' and 'percentage of wages' are used as synonymous terms. And we seem to have a similar identity of measure in section 35 itself, for there it is provided that the allowance of 'fifty per centum of the average weekly wages' for permanent total disability shall not be less than a minimum of $5 per week, 'unless the employé's established weekly wages are less than these last words to interpret them as including five dollars per week.' It would be straining board of undetermined value if such an element entered into the employé's agreement. item of board when unvalued, fruitful of litigation as it must inevitably be, is notoriously inconsistent with the purposes in mind when the Workmen's Compensation Act was planned." "It is quite clear that it is the purpose of the Workmen's Compensation Act to secure the pay-in the basis of compensation of benefits as the "It may be added that such an uncertainty ment of benefits, not from the unknown and uncontrolled assets of the individual employers, but, ordinarily, at least, from a fund set apart in advance of losses, either in the shape of the state accident fund or in the shape of insurance. This fund is to be made up of premiums payable from time to time; and, to the extent that experience makes it possible to foresee, the premiums are calculated to equal in the aggregate the benefits to be paid, in addition to incidental expenses with which we are not concerned. All the provisions of the act concerning security for compensation are carefully designed to effectuate this plan. "The state accident fund is created by premiums equal to fixed percentages of the money paid under employers' pay rolls. Sections 17-19. Provision is made for the facilitation of calculation on the basis of these payrolls. Sections 20, 21. And all this is designed to make the fund sufficiently large to cover 'the catastrophe hazard,' and 'adequate to meet anticipated losses and carry all claims and policies to maturity.' Section 23. And provision is made (section 29) to compel corporate insurers 'to establish and maintain adequate rates to cover respective risks to which their policies are applicable under the provisions of this act.' The funds to pay the losses then are to be made up of an aggregate of percentages of money paid on pay rolls, this aggregate being an estimate of the aggregate losses to be paid. But obviously those funds will not equal the losses if the losses on their part are to be calculated on the broader basis. The whole scheme will be upset. And the item of board is a very uncertain quantity; it may be measured by any one of three Section 18 of the act provides that: "In computing the pay roll the entire compensation received by every workman employed in extrahazardous work and insured in the state accident fund, within the meaning of this act, shall be included, whether it be in the form of salary, wage, piece work, overtime, or any allowance in the way of profit-sharing, premium or otherwise, and whether payable in money, board or otherwise. Provided the money value of board and similar advantages shall have been fixed by parties at the time of hiring." The compensation to which the appellant was entitled as provided by section 35 of the act was 50 per centum of his average weekly wages. It is clear the Legislature did not intend, as to insurance in the state accident fund, that board was to be included as wages, unless its money value was fixed by the parties at the time of the hiring. And for the reasons stated by Judge Bond in his opinion, it would be unreasonable to hold that it was intended that the premiums and rates of insurance from which the fund to pay losses were derived were to be calculated upon a narrower basis than that adopted for the allowance of compensation. The appellant has referred us to certain cases decided upon the compensation laws of Great Britain employ-and California. By those acts the compensaand California. By those acts the compensation is based not upon wages, but upon the earnings of the employé. Wages and earnings are not synonymous terms. The latter is a much more comprehensive term, and the cases cited have not been found helpful in the construction of the Maryland Act. standards of value; that of cost to the employer, that of price to hotel guests, or that of cost to the employé outside; and the value according to any one standard is not a fixed quantity. "I can only repeat that I think we are not permitted to suppose that the Legislature meant to have the funds provided to pay losses calculated upon a smaller basis than that allowed for the calculation of the losses themselves. That is equivalent to saying that 'average weekly wages,' under section 35, in which the scale of benefits is fixed, means wages in money or other things which have been given a fixed money value at the outset, just as it does in the Being of opinion that the construction placed by the court below upon the act is in accordance with the intention of the Legislature the judgment will be affirmed. Judgment affirmed with costs. (135 Md. 162) (108 A.) Preponderance of evidence in suit to avoid as fraudulent a transfer of property by W. held to show that a contract signed by plaintiffs W. and C., for furnishing by plaintiff of gasoline and oil for a business, conducted under the name of Oldfield Automobile Shop, and in fact owned by C., for whom W. worked, was signed and performed by plaintiff, on the understanding that W. was, as the contract indicated, a coowner of the business. 2. PARTNERSHIP 34-ESTOPPEL BY REPRESENTATION TO DENY PARTNERSHIP. One, on the faith of whose representation that he is a partner in a business goods are furnished thereto by another, is by provision of Code vol. 4, art. 73A, § 16, liable as a partner by estoppel to the other. 3. PARTNERSHIP 38-LIABILITY OF PARTNER BY ESTOPPEL LIMITED TO SELLER'S UN DERSTANDING. Though plaintiff contracted to and did, furnish oil and gasoline for a business on the understanding that W. was a co-owner of the business, as he represented, yet having done so with the understanding that W. was responsible for half of the account, and that this was W's share of the indebtedness, W. in fact not a partner in the business, but only an employé of the owner, should not be held to a partner's liability, for the full amount, there being no assets of the business, but should be held only for half. Appeal from Circuit Court, Howard County, in equity; Wm. Henry Forsythe, Jr., Judge. "To be officially reported." Action by Louis Blaustein, trading as the James Clark, of Ellicott City, and Morris URNER, J. On March 28, 1917, the parties to this appeal executed a contract which is in part as follows: "Louis Blaustein, trading as the American Oil Company, main office, Baltimore, Maryland, does hereby lease unto Clarence H. Oldfield and Walter F. Oldfield, trading as Oldfield Automobile Shop, one metal tank for storage of gasoline, with pipe lines and pump for said tank, to be placed and located by the lessee upon their premises at Ellicott City, for the receipt and delivery of gasoline, for the period of two years from April 15, 1917, to April 15, 1919, inclusive, at the reduced rental of one dollar ($1.00) per year, payable to the said company on the last day of this lease, or of any renewal thereof which reduced rental the said lessee hereby agrees to pay, and in consideration thereof, also to receive on consignment from, and to sell and deliver for said company exclusively, gasoline to trade who call at the premises aforesaid during the same period, at prices and terms to from time to time fixed and determined by the said company, and to pay over to the said company weekly the proceeds of all sales and the said company hereby agrees to pay the lessee for services in selling such supplies a commission of one cent per gallon." At the same time the following supplemental agreement was executed: "In consideration of gasoline tank and pump being leased by Louis Blaustein, trading as the American Oil Company, to Clarence H. Oldfield and Walter F. Oldfield, trading as Oldfield Automobile Shop, as per separate lease and gasoline agreement signed this day, it is also understood that Clarence H. Oldfield and Walter F. Oldfield, trading as Oldfield Automobile Shop, is to purchase their exclusive lubricating oil requirements from the American Oil Company during the period covered by other lease and at the American Oil Company's regular public garage prices, whatever they may be at the times of deliveries." Both of the agreements were thus signed: "American Oil Company "By L. Blaustein. [Seal] "Oldfield Automobile Shop [Seal] "By C. H. Oldfield, "W. F. Oldfield." In pursuance of the two contracts deliveries of gasoline and oil were made from April 7 to September 17, 1917, at prices aggregating $1,907.90, upon which payments were made to the amount of $1,669.51, leaving a balance due of $352.97. On September 21, 1917, Clarence H. Oldfield abandoned the business, and on November 30th following Louis Blaustein, trading as the American Oil Company, filed the pending bill of complaint to have vacated certain deeds dated Novem ber 8, 1917, by which Walter F. Oldfield conthe bill being that the conveyance was in veyed his property to his wife, the theory of fraud of the rights of the plaintiff as a creditor of the grantor, who was charged with liability as a partner for the balance claimed on account of gasoline and oil delivered to the Oldfield Automobile Shop. The answer denies that the defendant Walter F. Oldfield was a partner in the business for which the material in question was furnished, or that he was responsible in any way for the debt which the bill seeks to enforce, but alleges that the defendant was merely an employé of his brother, Clarence H. Oldfield, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |