650 (Pa. be affected by the use of this invoice as evidence. [3] In the fourth assignment of error, complaint is made of the exclusion of the offer of defendant's counsel to show that no blue prints, showing the machinery in question, were received or seen by defendant prior to the date of the acceptance of plaintiff's proposition. The letter containing that proposition stated: "We propose to furnish winding machinery complete, as shown by our b. p. (blue prints).” offer, for the declared reason that, under the The trial judge excluded the wording of the proposition, if defendant had not received the blue prints, it should have notified the plaintiff of that fact, and have waited until it did receive them before accepting the offer. He held that if defendant saw fit to accept the proposition without waiting to receive the blue prints, it was bound by its acceptance, and it was therefore immaterial whether it had actually received the blue prints at the time or not. We see no reason to differ with the view expressed by the trial judge in this respect. mediately before or during the trial, he has a right to a continuance as a matter of course. The act of assembly does not seem to us capable of this construction. It puts it not on the allegation of surprise, but on the existence of the fact, which necessarily throws upon the court the duty of ascertaining and determining whether the party is really surprised, or there is merely an affectation of being so without real foundation. For many cases may be supposed in which the alteration would be so trivial, or it could be so obvious, that no surprise could exist, that it would be unjust to allow a continuance. Of this, however, the court below is the sole judge. Being matter of sound discretion, and turning frequently on matters of fact not appearing in the record, the question whether or not a party was surprised by allowing an amendment, is not of a nature to be examinable on a writ of error, but the judgment of the court must, as in numerous other instances, be final and conclusive." The same principle was again stated in Farmers' & Mechanics' Ins. Co. v. Simmons, 30 Pa. 299, 302, where Mr. Justice [4] The fifth, sixth, seventh, eighth, ninth, Strong said: "If the amendment was proper- and eleventh assignments of error all relate ly allowed, then the refusal to permit a con- to the exclusion of evidence bearing upon the tinuance of the cause was a thing discre- measure of damages to be allowed to detionary with the court, and the exercise of fendant, in case it succeeded in satisfying the that discretion cannot be reviewed by us." jury that the plaintiff had not fulfilled the And again in Walthour v. Spangler, 31 Pa. terms of the contract. But it is apparent 523, it was held, as set forth in the sylla- from the verdict that the jury found that bus: "The allowance or refusal of a contin- there was no breach of the contract, for it uance, in case of an amendment, is a mat- awarded to plaintiff its entire claim. Under ter of discretion in the court below, which this finding, no damages could have accrued is not reviewable in this court." In the pres- to defendant, and the action of the court ent case we see no reason to fairly question with respect to evidence as to the measure the discretion which was exercised by the of damages became immaterial. trial judge, in refusing to continue the case; [5] In the tenth assignment of error it is aland as to the admission of the letter in evi-leged that the trial judge erred in excluding dence, if the amendment to the statement an offer made by defendant's counsel to show was proper, the letter which was the subject of the amendment, was necessarily admissible. [2] In the third assignment of error, complaint is made of the admission in evidence, against objection of an invoice or itemized statement of the amount claimed by plaintiff. It appears from the record that a letter written by plaintiff to defendant, stating the amount of the invoice, was offered in evidence, and was admitted without objection. Counsel for plaintif then offered the invoice referred to in the letter, and it was admitted against objection. We see nothing wrong in this, for the invoice was merely an itemized statement of the amount claimed. If the letter was admissible, the invoice was equally so, for it was merely an amplification of a part of the letter. We do not see that its admission could have done defendant any harm. The fact that the machinery had been furnished was not denied, nor was it claimed that the prices charged were not in accordance with the contract. The defense that the track furnished by plaintiff was inadequate to sustain the burden put upon it, and that by reason of that fact the defendant was obliged to lay additional rails and readjust the track. It does not appear, however, that there was any offer to show any departure in the weight or size of the parts in question, from the specifications set forth in the contract. There was evidence tending to show that the material furnished conformed in these particulars to the contract, and to the order given by defendant company. There was no express warranty as to the working of the machinery, and as the order specified articles of a given weight, size and material, to be manufactured according to specified plans, there would be no implied warranty. The principle of an implied warranty is not to be applied where a special thing is ordered, although this be intended for a special purpose: Port Carbon Iron Co. v. Groves, 68 Pa. 149; American Home Savings Bank Co. v. Trust Co., 210 Pa. 320, 59 Atl. 1108. complaint is made of the overruling of the ob- | moving street car of the appellee company. jection of defendant's counsel to a hypothet- He sued the company, in the Baltimore city ical question put to a witness called by court, for damages resulting from the inplaintiff in rebuttal. The testimony shows jury, alleging that it had been caused by the that the objection was made on the specific negligence of the persons in charge of the ground that "the contract provides for grip car. Under an instruction of the court becars and trailers." Counsel for appellant low that from the uncontradicted evidence now urge that the question assumed facts the driver of the wagon was guilty of connot in evidence, and that it was therefore er- tributory negligence at the time of the acror to overrule the objection. But that is cident, the jury rendered a verdict for the not the ground upon which the objection was defendant. The present appeal was taken put when it was made. In Mills v. Buch- from the judgment entered on that verdict. anan, 14 Pa. 59, where the prior decisions were reviewed, it was held, as set forth in the syllabus, that "a party objecting to evidence, is to be confined to the ground of objection taken in the court below." And in the later case of Danley v. Danley, 179 Pa. 170, 36 Atl. 225, it was declared to be a settled principle that the party complaining on appeal of admission of evidence in the court below, will be confined to the specific objection there made to it. This rule was again approved in the recent case of Benner v. Fire Association, 229 Pa. 75, 78 Atl. 44. The trial judge submitted to the jury the question whether the alleged unsatisfactory operation of the plant was due to the improper manner in which the machinery was set up and run, or whether it was due "to a radical or essential insufficiency" in the machinery itself. The verdict of the jury settled this contention in favor of the plaintiff. The assignments of error are all overruled, and the judgment is affirmed. (115 Md. 69) WINTER v. UNITED RYS. & ELECTRIC CO. (Court of Appeals of Maryland. Feb. 3, 1911.) STREET RAILROADS (§ 99*)-COLLISION WITH VEHICLES-CONTRIBUTORY NEGLIGENCE. The driver of a vehicle was guilty of contributory negligence barring recovery for injury sustained in collision with a street car, where he could have avoided the collision by waiting until an intervening car had moved far enough to disclose the approaching car with which he collided. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 209-216; Dec. Dig. § 99.*] Appeal from Baltimore City Court; Thos. Ireland Elliott, Judge. Action by William A. Winter against the United Railways & Electric Company. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before BRISCOE, PEARCE, SCHMUCKER, THOMAS, PATTISON, and URNER, JJ. There is but one exception in the record, and that was taken to the action of the court at the close of the case in rejecting the plaintiff's prayers and granting the defendant's prayer, withdrawing the case from the jury. The primary issue therefore presented by the appeal is whether it appears from the uncontradicted evidence that the driver of the wagon was guilty of negligence directly contributing to the occurrence of the accident. Turning to the record, we find that the following facts appear from such evidence. The collision occurred at the intersection of Baltimore and St. Paul streets, in Baltimore city, at about 20 minutes after 7 o'clock on the morning of Sunday, August 22, 1909. At that time there is ordinarily little or no traffic on the street, and the view from one square to another is clear. Baltimore street runs east and west, is 66 feet wide, and contains the double tracks of the appellee's electric street railway. St. Paul street runs northerly from Baltimore street, and. is also 66 feet wide. Light street runs southerly from Baltimore street, forming a continuous street with St. Paul street, intersecting Baltimore street at right angles. There ing south toward Baltimore street. is a descending grade on St. Paul street, go On the morning of the accident, the appellant's driver, L. H. Pettus, was driving his horse and wagon south, along the west side of St. Paul street toward Baltimore street, on the way to the Light street wharf to deliver a load of newspapers to a departing steamboat. As he came to the Baltimore street crossing, he looked east and west on that street for approaching cars and saw a Coming west-bound car. What then occurred, he states as follows: "When I seen the car coming west, I slowed up, and he passed; and when he got to the International Trust Company, west, I seen there was no car coming east; that is, I could not see it. If it Witness was, it must have been behind." was here interrupted by plaintiff's counsel, but, being directed by the court to proceed, he further said: "When I started to pass J. Austin Fink, for appellant. J. Pem- and got to the gutter, I seen the Madison broke Thom, for appellee. SCHMUCKER, J. The appellant's horse and wagon were injured by a collision with a avenue car about to overtake me. If I had went in front of the car, he would have hit me full in the face, and maybe killed myself and the horse and smashed the wagon; but I seen the motorman was not stopping the car; he was going at full speed; and I tried then to pass behind, and when he caught me in the side and knocked the horse down and done injuries to the wagon and harness and horse." On his cross-examination he admitted that he had run into the side of the car at the distance, as he said, of about four feet from its front. The witness further said that he came down St. Paul street toward Baltimore street at a dog trot, but when he reached the gutter on the north side of Baltimore street he slowed down "to pretty near a walk." He also said that when he first saw the eastbound Madison avenue car, with which the wagon collided, it was almost opposite him on the south track, running at a high rate of speed, and that at that time the front wheel of his wagon was about in the gutter on the north side of the street, and the head of the horse was in the west-bound track. When asked by the court why he did not remain where he was until the car passed him, he replied that he could not; that the space was too short; that "the weight of the wagon would have pulled the wheels out of the gutter and throwed the wagon ahead." He did not, in his answer to the court's questions, say that he made any effort to remain where he was; but merely expressed the opinion that he could not have done so for the reasons which he mentioned. On the contrary, he elsewhere testified that he went ahead with the expectation of passing behind the moving car, which he failed to do. No bell was rung on the car, nor did it slacken in speed until after the collision. The car was an open summer one, with 12 transverse seats. There was the usual conflict as to the speed at which the car traveled. The plaintiff's witnesses said it was going from 20 to 25 miles an hour; while the conductor and motorman said it was not going more than 5 or 6 miles an hour, hardly half speed. They both said that they saw the horse and wagon coming down St. Paul street toward Baltimore street, but had no idea that it was going to run into the car. The motorman said that the driver "had plenty of room to pull his horse to the right and clear the rear end of the car, and instead of that he went right ahead and let the horse have his own way." A lady who was a passenger, sitting on the third seat from the rear of the car at the time of the accident, said that she saw the wagon coming down St. Paul street, and the horse struck the seat in front of her. She said the car was not going so very fast, but had no idea of how many miles an hour it went. Upon this showing, we think the learned judge below properly withdrew the case from the jury. Admitting that the motorman of sound his gong as he approached the crossing and assuming that the car was going at an excessive speed, we think the testimony of the plaintiff's driver convicts him of negligence directly contributing to the collision by which the horse and wagon were injured. When he reached the north side of Baltimore street, for the purpose of crossing it, and slackened his speed to a walk to permit the west-bound car to pass him, he must have had his horse under such control as to have been able to stop him, if necessary. Before attempting to make the crossing of the street, he should have looked west for an east-bound car. As that car ran on the south side of the street, he could easily have avoided striking it, if he had seen it before he started across. He does not say that he looked for an east-bound car at that time, but says that after the west-bound car had passed him "I seen there was no car coming east; that is, I could not see it. If it was, it must have been behind"-apparently intending to say behind the west-bound car, as he mentions no other obstruction, and the uncontradicted testimony of the motorman and conductor was that there were very few people then on the street, and that at that hour on Sunday the street is clear, and "you can see clean from one square to another." The driver, when he halted at the northbound gutter, was in a place of safety, and if he had then exercised such reasonable care as might be expected of an ordinarily prudent driver, and waited for a few seconds until the west-bound car had gone far enough on its way to uncover the view of the street for a reasonable distance west, he would have seen the east-coming Madison avenue car, and could easily have allowed it also to pass before attempting the crossing, and thus have prevented the collision. Instead of taking that reasonable precaution, he started across the street, and had gotten so far that his horse's head was in the west-bound track before he saw the car coming on the east-bound track, almost opposite him. He did not even then endeavor to stop his horse until the car had passed, but went forward in an effort to pass around behind the car, with the disastrous result of a collision with it. We agree with the learned judge below that the uncontradicted evidence in the case shows the driver of the wagon to have been guilty of negligence directly contributing to the accident complained of, and we find no error on his part in granting the defendant's prayer to that effect. The conclusion at which we have arrived renders it unnecessary for us to consider or pass upon his action in rejecting the plaintiff's prayers. The judgment appealed from will be affirmed. (115 Md. 85) MCCAUGHEY v. BYRNE. tate of Emily Madeline Wyman, deceased. From an order appointing Byrne administrator, etc., the residuary legatee appeals. Re (Court of Appeals of Maryland. Feb. 3, 1911.) Argued before BOYD, C. J., and BRISCOE, Code 1904, art. 93, § 30, which provides PEARCE, SCHMUCKER, BURKE, THOMthat, if there be no relatives, administration shall be granted to the largest creditor applying AS, PATTISON, and URNER, JJ. therefor, relates only to cases of intestacy, and not to a case where the executor named in the will declines to serve. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 110; Dec. Dig. § 21.*] 2. EXECUTORS AND ADMINISTRATORS (§ 21*)- LEGATEE"-CREDITOR. Under Code 1904, art. 93, § 33, which declares that in granting administration with the will annexed the residuary legatee or legatees shall be preferred, and directs the orphans' court to proceed in the manner directed by law with respect to executors within the state before administration with the will annexed shall be granted to any other person, the phrase "in the manner directed by law" relates to the provisions of sections 32 and 33, relative to notice; and, where the executor named in the will declined to act, the residuary legatee was the person next entitled, and a person who, in addition to a bequest of the residue of the estate after the death of another, was given a remainder in a specific part of the estate, is a "residuary leg atee," and hence on petitions by such legatee and by a creditor the court could not grant administration to the creditor. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 110; Dec. Dig. 8 21.* For other definitions, see Words and Phrases, vol. 7, p. 6169; vol. 8, p. 7788.] 3. EXECUTORS AND ADMINISTRATORS (8 21*) John G. Rogers, for appellant. Louis T. Clark, for appellee. SCHMUCKER, J. This is an appeal from a decision of the orphans' court of Howard county that a creditor of a testator was entitled to precedence over a residuary legatee in the grant of letters of administration cum testamento annexo upon the estate. It appears from the record that Emily Madeline Wyman, a widow, residing in Howard county, died in June, 1910, leaving a last will, which was duly admitted to probate by the orphans' court of Howard county on August 2, 1910. Her will, after making sundry specific devises and bequests and. pecuniary legacies, disposed of the residue of her estate in the following terms: "And I do devise and bequeath all the rest and residue of my estate both real, personal and mixed to my sister Mary Theresa Dallas, at her death to go to Annie McCaughey in reward for her devotion to my sister." By an earlier clause of the will she gave No. 23 Tremont street, Boston, Mass., and the sum of $3,000 to Francis J. Horgan in trust for her sister, Mary Theresa Dallas, for life with remainder to Annie McCaughey for her devotion to the sister. The will named the National Savings-Trust Company of Washington as executor, but that institution declined to act as such, whereupon on September 6, 1910, the orphans' court passed an order appointing Mary T. Dallas, the sister of the testatrix, administratrix cum testamento annexo of her estate. On October 11, 1910, Francis J. Horgan, trustee of Mary T. Dallas, and the appellant as a remainderman under the will of Mrs. Wyman, filed a joint petition in the orphans' court alleging the death of Mrs. Wyman testate, the admission Where the orphans' court, on allegations of her will to probate, the renunciation of that one of two residuary legatees, appointed the executor therein named, and the order of administratrix with the will annexed, is non court appointing Mary T. Dallas administracompos mentis, resorts to the method prescribed trix cum testmento annexo, and averring by Code 1904, art. 93, § 55, of issuing a writ de lunatico inquirendo to try that issue, and it is that Mary T. Dallas was non compos mentis determined that she is incompetent to act, then and hence incompetent to act as such. the other, under the express provisions of Code petition prayed for the recission of the order 1904, art. 93, § 33, is entitled to the appoint-appointing Mary T. Dallas administratrix ment, or, without such a determination, the other may be selected as one of the two residuary legatees to whom administration may be granted. [Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 21.*] APPOINTMENT-ADMINISTRATION WITH THE WILL ANNEXED. Under Code 1904, art. 93, § 33, which declares that, if administration with the will annexed is to be granted, a residuary legatee shall be preferred, where there is only one individual answering to the description of the person entitled, he must be appointed, but the orphans' court has discretion to make selection, where there is more than one person equally entitled. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 106-115; Dec. Dig. § 21.*] 4. EXECUTORS AND ADMINISTRATORS (§ 21*)APPOINTMENT - ADMINISTRATOR WITH THE WILL ANNEXED-RESIDUARY LEGATEE. The C. t. a. and the appointment as such administratrix of the petitioner Annie E. McCaughey, who claimed the right to the appointment by virtue of her being a residu Appeal from Orphans' Court, Howard ary legatee under the will. It was further County. Petitions by Annie E. McCaughey, as residuary legatee under the will, and by Bernard J. Byrne, a creditor, for letters of administration with will annexed on the es averred in the petition that Horation Nelson Dallas, the brother of the testatrix, was a nonresident of this state, and that his place of residence was otherwise unknown, except that when last heard from he was a resident of the state of Massachusetts, but that he | 61 Md. 250. It is equally clear that the law had not been heard from for a long time. has conferred upon the orphans' courts the On the same day, October 11, 1910, Bernard power and discretion of making a selection, J. Byrne of Howard county, claiming to be from a class of persons equally entitled, of a creditor of the testatrix to the extent of the one to receive the appointment. Bowie $60, filed his petition in the orphans' court v. Bowie, 73 Md. 232, 20 Atl. 916; Kailer v. averring that she had left surviving her no Kailer, 92 Md. 147, 48 Atl. 712. relatives legally competent, and praying that letters of administration c. t. a. on her estate be issued to him as the person who, under the circumstances, was first entitled thereto. On the same day the orphans' court passed the order appealed from, rescinding its former order of September 6, 1910, by which Mary T. Dallas had been appointed administratrix c. t. a., and directing letters of like character to be issued to Bernard Byrne. [1, 2] The orphans' court were clearly in error in treating Byrne, a creditor of the testatrix, as entitled to the letters of administration in precedence of the appellant as a residuary legatee under her will. Section 30 of article 93 of the Code of 1904 does provide that "if there be no relations administration shall be granted to the largest creditor applying for the same"; but it is clear from the context that that provision relates to cases of intestacy, as section 30 forms one of a series of sections providing for the issue of letters of administration “whenever any person shall die intestate." Section 33 of article 93 provides for cases like the present one. It declares: "If letters of administration are to be granted with a copy of the will annexed, and there be a residuary legatee or legatees in such will he or they shall be preferred to all except a widow." Section 33 further directs the court to proceed in the manner directed by law with respect to executors within the state before administration (c. t. a.) shall be granted to any other person. In Brodie v. Mitchell, 85 Md. 518, 37 Atl. 170, we held that the words "in the manner directed by law," which, by the provisions of the section, govern the proceedings of the orphans' court in appointing administrators c. t. a. in cases like the present one, related to the provisions of sections 32 and 33 relative to notice, so that the persons entitled should have a day in court. In the present case the executor named in the will voluntarily declined to act. and, there being no widow, the residuary legatee was under the terms of the statute next entitled. The appellant in our opinion answers fully to the description of a residuary legatee. The mere fact that she takes an estate in remainder in the residue does not take her out of the category of residuary legatees. [4] If, in the present case, the orphans' court, which was without the power to try or determine the issue of the sanity of Mary T. Dallas, the other one of the two residuary legatees named in the will, had resorted to the method prescribed by section 55 of article 93 of the Code, of issuing a writ de lunatico inquirendo to try that issue, and it had in that manner been determined that she was in fact non compos, then the appellant as the only competent residuary legatee would as a matter of law have been entitled to the appointment. Kearney v. Turner, 28 Md. 425; Bowie v. Bowie, supra; Kailer v. Kailer, supra. Or the orphans' court might have selected, and it may still select, the appellant as the one of the two residuary legatees to whom to issue the letters; but it was plainly erroneous for that tribunal in the face of the appellant's application for the letters to grant them to Bernard J. Byrne, as was done by the order appealed from, which must therefore be reversed, and the case remanded for further proceedings in conformity to this opinion. Order reversed, and case remanded for further proceedings in accordance with this opinion; appellee to pay the costs. A Code 1904, art. 16, § 161, requires a general swer, and provides that, if the plaintiff shall fail replication to be filed within 15 days after anor refuse so to do, the defendant shall be entitled to a "rule further proceedings" within 10 the defendant may have the bill dismissed. days after notice, and, upon failure to comply, defendant filed an answer on February 1st, and on the 16th directed the clerk to enter a "rule further proceedings" on the books, and it was served on the 17th. On the 28th the bill was dismissed. Held, that plaintiffs, being entitled to 15 days in which to file their replication after answer, might have filed it on the 16th, and, the rule having been prematurely filed on that ing the bill. day, the court might rescind its decree dismiss [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 182-192; Dec. Dig. § 81.*] 2. DISMISSAL AND NONSUIT (§ 81*)-PLEADING -REVOCATION-TIME FOR FILING. In view of Code 1904, art. 16, § 148, pro[3] Where there is only one individual an-viding that at any time before a bill is taken swering to the statutory description of the person entitled, the law must be strictly obeyed, and he must be appointed. Carpenter v. Jones, 44 Md. 628; Griffith v. Coleman, pro confesso, or afterwards before final decree, defendant may answer, plead, or demur by speexercised by courts of law during term time cial leave of court, and in analogy to the powers over judgments rendered at the term a court of |