At the trial the defendant's counsel contended: (1) That neither party was bound by the terms of the contract; and (2) that "the defendant was excused from performing because the plaintiff had drawn out money he had not accounted for." [1, 2] From a careful reading and consideration of the testimony, we are of the opinion that the document executed on June 4, 1915, was binding upon the parties thereto, and that the reasons offered to excuse performance on the part of the defendant are not valid. Every reason stated by the defendant was known to him before the first document was written, and from his own testimony these very reasons were at the foundation of his dissatisfaction with the plaintiff, and the testimony in support of the plaintiff's contention is overwhelming. The case is one of perfect negotiation resulting in a completed contract on June 4, 1915. Both counsel cite and rely upon Steamship Co. V. Swift, 86 Me. 248, 29 Atl. 1063, 41 Am. St. Rep. 545. The rules laid down in that case are universal, and its doctrine is controlling in the case at bar. These parties arrived at a point when they could no longer do business together. They desired to separate, and after agreeing between themselves they sent for an attorney, whose services at their con sign it? The evidence does not furnish any reason to assail the validity of the first mentioned agreement. In Steamship Company v. Swift, 86 Me. 248, 29 Atl. 1063, 41 Am. St. Rep. 545, cited by both parties, a different state of facts is presented. There the parties were in correspondence for nearly a year in relation to certain space on three steamboats, to be fitted with refrigerators and used by the defendants for shipping meat. The plaintiff claimed that the contract was completed in April, 1890. The defendants denied that any contract was made or signed. The case shows that after prolonged correspondence and many delays and requests for a contract the plaintiff finally sent a form of contract which was not signed. In finding for the defendant the court say: "The case is by no means free from doubt and difficulty, but due reflection and study of the clusion that what the plaintiff claims to have evidence have at the last brought us to the conbecome a perfected contract on April 5, 1890, by the defendant's letter of that date, was, at basis of a contract, which was yet to be perthe most, only the acceptance of the proposed fected as to details, and put in writing, and that the defendants did not have nor signify any intention to be bound until the written draft had been made and signed." It was further held that: ties merely as a convenient memorial, or rec"If the written draft is viewed by the parord of their previous contract, its absence does not affect the binding force of the contract. If, however, it is viewed as the consummation of the negotiations, there is no contract until the written draft is finally signed." Both rules are then emphasized and illustrated, and the decision is a leading authority, widely cited.. that they continue merely in negotiation. It is a matter to be taken into account in construing the evidence and determining whether the parties have really come to a final agreement or not. But as soon as the final mutual assent of the parties is established, so that those who draw up the formal ference resulted in an agreement in writing which both parties signed, and which from the testimony embodied just what both parties wanted to do and what their deliberate intentions were. Nothing can be plainer than the statements made by the writer; nothing simpler or more single in purpose, and withal there is no suggestion of ambiguity. These parties desired to dissolve their relation as It is settled that the mere fact that the copartners. The agreement provided for that, and for payment of $400 to the retiring parties have expressly stipulated that there partner, and the usual stipulation as to col- shall afterwards be a formal agreement prelection of debts and paying liabilities. That pared, embodying the terms, which shall be is all. If, as the defendant claims, the docu-signed by the parties, does not by itself show ment of June 4, 1915, was not a contract, because the last was to be effective if satisfactory to him, what is there in the last one to justify his refusal to sign? If not satisfactory to him, why not? A comparison of the documents shows that the attorney made a longer document, using more words to express his meaning, but to all intents and pur-agreement have not the power to vary the poses covering the same ground as the first down to the last clause, with which the parties having signed the first must necessarily These authorities hold that the burden be satisfied. The attorney added paragraph of proof is on the party claiming that the 5, which makes a provision not in the first contract was completed before the draft was document, and so manifestly in the interest signed; and the authority last cited holds, of the defendant that the conclusion is ir too, that, if the parties act under the preresistible that the defendant, having signed liminary agreement, or receive benefits therethe first, had no reasonable excuse for refus-under, they will be held bound notwithstanding to sign the latter. There was a contract ing the fact that a formal contract has never made on June 4, 1915. The minds of the parties met, and, although the document was written hastily, outside the office of the attorney, yet it expresses all that they desired to do, and they signed it. If it were not terms already settled, the contract is completed. 6 R. C. L. 619. been executed. Id. 620, citing 29 L. R. A. 436, note; Sanders v. Pottlitzer Bros. Fruit Co., 144 N. Y. 209, 39 N. E. 75, 29 L. R. A. 431, 43 Am. St. Rep. 757. See Miller v. McManis, 57 Ill. 127. 3. SET-OFF AND COUNTERCLAIM 27(2) Counterclaim, Cent. Dig. 46; Dec. Dig. negotiating a contract contemplate that a formal agreement shall be made and signed is some evidence that they do not intend to bind themselves until the agreement is reduced to writing and signed. But nevertheless, it is always a question of fact, depending upon the circumstances of the particular case, whether the parties had not completed their negotiations and concluded a contract definitely complete in all its terms which they intended should be binding upon them, and which for greater certainty, or to answer some requirement of the law, they designed showing that the son performed services of benIn such action, plaintiff had the burden of to have expressed in a formal written agree-efit to the father beyond the amount received ment. Wharton v. Stoutenburgh, 35 N. J. Eq. 266. INABILITY TO RECOVERY ON QUAN 4. WORK AND LABOR 26 from the proceeds of the farm, that he had not been paid therefor, and that the benefits there from were retained, and was bound to make a prima facie case as to the existence of these facts to justify submission of the case to a jury. [Ed. Note. For other cases, see Work and Labor, Cent. Dig. 88 47-49; Dec. Dig. 26.] 5. WORK AND LABOR 30(2)-INABILITY TO PERFORM CONTRACT RECOVERY ON QUAN TUM MERUIT. There is conflict as to the real purpose of making another draft of the agreement on the following day, but no suggestion was made by either party that there was to be a change in the stipulations. A careful reading of the testimony leads to the conclusion that the suggestion of making another In such action, there was no question for or more formal draft of the agreement came the jury where there was no evidence as to the from the attorney, for his own purposes or value of the proceeds of the farm admittedly reconvenience, on his own motion, without pro-ceived by the son, especially where the evidence test from the parties, or expectation on their part that the agreement so made should be changed. The entry will be: (115 Me. 26) PREBLE v. PREBLE. (Supreme Judicial Court of Maine. April 10, 1916.) 1. WORK AND LABOR 29(2)—INABILITY TO PERFORM CONTRACT RECOVERY ON QUANTUM MERUIT. Where, under an agreement between a father and his son, the son was to operate the father's farm and divide the proceeds and have the farm on the father's death, and the son became seriously ill and incapable of performing the contract, whereupon his guardian sued on quantum meruit for the value of his services performed under the contract, she could not recover a sum far in excess of the value of the farm, thus doing indirectly that which could not be done directly, especially when it did not appear that the father had received and retained benefits for which he had not rendered full pay ment. [Ed. Note.-For other cases, see Work and Labor, Cent. Dig. § 57; Dec. Dig. 29(2).] 2. WORK AND LABOR 14(1), 191⁄2 INABILITY TO PERFORM CONTRACT RECOVERY ON QUANTUM MERUIT. Where a son, operating his father's farm under an agreement that he was to have a share of the proceeds and the farm upon the father's death, became ill and unable to further perform the contract, an action could be maintained on quantum meruit for the value of his services, and, given the necessary facts, such action would not be premature, though brought during the father's lifetime. [Ed. Note. For other cases, see Work and Labor, Cent. Dig. §§ 31, 39; Dec. Dig. 14(1), 19%; Damages, Cent. Dig. § 330.] as to the value of the son's services was unsatisfactory and it appeared that he claimed practically all the stock, horses, farming machinery, and tools, though he had no property at the date of the contract, and that he had done work for other parties with his teams, and with the assistance of the father, for which he had received and retained the proceeds, and the amount and value of such services, and the income therefrom, were not shown. [Ed. Note.-For other cases, see Work and Labor, Cent. Dig. §§ 59-62; Dec. Dig. 30(2).j 6. TRIAL 159-DISMISSAL AND NONSUITFAILURE OF PROOF. Where there was no evidence to support a finding for plaintiff, a nonsuit was correctly ordered. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 341, 359-367; Dec. Dig. 159.] Exceptions from Supreme Judicial Court, Sagadahoc County, at Law. Action by Alice P. Preble, guardian of Albert M. Preble, against Harvey M. Preble. A nonsuit was granted, and plaintiff brings exceptions. Exceptions overruled. Argued before SAVAGE, C. J., and CORNISH, KING, HANSON, and PHILBROOK, JJ. Williamson, Burleigh & McLean, of. Augusta, for plaintiff. Clarence E. Sawyer, of Portland, for defendant. HANSON, J. This is an action of assumpsit, containing a quantum meruit count, brought by the plaintiff as guardian of Albert M. Preble, son of the defendant. At the conclusion of the plaintiff's testimony, counsel for the defense moved a nonsuit, which was ordered, and the plaintiff excepted. The case shows that on February 5, 1905, Albert M. Preble entered into an agreement with his father to operate the homestead farm and divide the proceeds between them, and on the father's death Albert M. Preble was to have the farm. From the date of the agreement until November, 1914, it was carried out to the satisfaction of both parties, each doing his part of the work, and receiving his share of the proceeds. In November, 1914, Albert M. Preble be came seriously ill, and in consequence wholly incapacitated for the performance of labor. Since that date, his wife, the guardian, has performed for him the conditions of the agreement, and has received the income from the farm as Albert M. Preble received it be fore he was incapacitated. Such was the situation at the date of the writ. The suit was brought without notice to the defendant, or demand for payment, other than the service of the writ. It is claimed by the plaintiff that he is entitled to a further payment of $30 or $40 per month during the entire nine years, and the aggregate of his claim is nearly, if not fully, double the value of the defendant's farm. The father is 70 years old and in fair health. From the evidence in the case it appears that Albert M. Preble, his wife, and daughter, were, at the time of the trial, and are so far as known at the present moment, on the farm, living as they have lived for years as one family, doing such work as they chose to do, and each receiving his part of the products of the farm. So far as the case discloses, the defendant was willing to carry out the contract. The plaintiff shows no refusal on the part of the defendant to accommodate himself to the changed conditions during his son's illness. On the contrary, the defendant | accepted the situation and was observing the agreement as he had during the period of his son's good health, and was working as he had from the first. What more could he do? If the plaintiff's testimony is true, and we must assume that it is, all that the defendant agreed to do was to give Albert M. Preble one-half of the proceeds of the farm during his life, and the farm at his death. The first part of the consideration has been paid. The amount is unknown, but it is paid. The plaintiff admits it. The other part of the consideration cannot well be paid or delivered until the time agreed upon expires. The agreement was that the farm was to be the property of Albert M. Preble on the death of the defendant. for which he has not rendered full payment. [2] Counsel haye devoted much space to a discussion of the form of action and whether or not the suit is prematurely brought. We think the action, sustained by the necessary facts, may be maintained, and, given the necessary facts, such action would not be premature. That quantum meruit is a proper count in such cases is maintained by almost universal acceptance in modern decisions, and the decided weight of authority supports the rule that recovery may be had for the value of the services actually rendered where the performance of an entire contract for personal services is prevented by sickness or death. A circumstance that has had a decisive influence is the fact that in such case the other party has received and retains the benefit of the services. 6 R. C. L. 979; Parker v. Macomber, 17 R. I. 1, 674, 24 Atl. 464, 16 L. R. A. 858; O'Connor v. Briggs, 182 Mass. 389, 65 N. E. 836; Water Co. v. Skowhegan Village Corp., 102 Me. 323, 66 Atl. 714; Parsons on Contracts (9th Ed.) vol. 2, p. 831; 6 R. C. L. 348; Steeples v. Newton, 7 Or. 110, 33 Am. Rep. 705; Lakeman v. Pollard, 43 Me. 463, 69 Am. Dec. 77; McMillan v. Malloy, 10 Neb. 228, 4 N. W. 1004, 35 Am. Rep. 471; Knight v. Bean, 22 Me. 531. [3] At the same time, the rights of the defendant are guarded with equal care, and the rule in his behalf is that if the failure of Albert M. Preble to fulfill the contract was not caused by the fault or default of the defendant, and any damages have resulted, they may be offered by way of recoupment to reduce the compensation to which Albert M. Preble would otherwise be entitled. 9 Cyc. 686; Seretto v. Railway, 101 Me. 140, 63 Atl. See Veazie v. Bangor, 51 Me. 509. It is evident that the contract was made in good faith, each intending to carry out his promises, and it is conceded that the defendant had performed his part, and was ready so to continue. The serious illness of Albert M. Preble intervened. Suit was brought and presents the question of the liability and rights of both parties. 651. [4] To recover, the plaintiff assumes the burden of showing: (1) That Albert M. Preble performed services which were of benefit to the defendant, beyond the amount received from the division of the proceeds of the farm; (2) that Albert M. Preble has not been paid therefor; and (3) that the benefits therefrom are still retained by the defendant. These important elements are necessary in order to establish facts from which a just and impartial verdict might be reached by the jury, and must be proved in order to justify submission of the case to a jury. In other words, the plaintiff must at least make out a prima facie case, before the adverse party may properly be called upon to answer. [1] The amount sought to be recovered is far in excess of the value of the farm. The claim set up by the plaintiff would therefore operate to do indirectly that which from the nature of things could not be done directly. If the plaintiff were to recover what she has sued for, she would take the farm on execution and dispossess the defendant, when the latter may have many years to live. The law will not do this service for the plaintiff, [5] The plaintiff's case is far too deficient especially when it does not appear that the in each of the necessary requirements to war ceipt of one-half of the proceeds of the farm | able per se, without proof of malice or pecuniwhich were the result of the combined work ary damage. of Albert, M. Preble and defendant is admit ted, but the value of such proceeds is not shown. This fact alone is sufficient to authorize the withdrawal of the case from the jury, especially in view of the unsatisfactory evidence tending to show the value of Albert M. Preble's services, where the witnesses called did not know, and the case does not show, the amount received by Albert M. Preble under the contract, or the value of the defendant's services. [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 78; Dec. Dig. 7(19).] Action by Hiram H. Pleasanton and Anna Marie Pleasanton, his wife, against Frank Kronemeier and Rebecca Kronemeier, his wife. Verdict for defendants. Argued before CONRAD and HEISEL, JJ. Julian C. Walker, of Wilmington, for plaintiffs. Reuben Satterthwaite, Jr., of Wilmington, for defendants. Action by Hiram H. Pleasanton and Anna M. Pleasanton, his wife, against Frank Kronemeier and Rebecca Kronemeier, his wife, for alleged slanderous words. The declaration contained two counts. After the induce ment and colloquium, the first count laid the words spoken, as follows: ton, the lawful wife of the said Hiram Harry mean [6] To add to the uncertainty of the case presented, it appears that Albert M. Preble had no property at the date of the contract, but now claims practically all the stock, horses, farming machinery, and tools on the farm, and from the first did much work personally, and with his teams, for other parties, and received and retained the proceeds, while in much of the work he was assisted by the defendant. Here again the amount and value of such service, and income, were not shown-a fact which gives added weight to the uncertainties attending the entire transaction, and emphasizes the fact that in the case presented there was nothing for the jury. There was no evidence to support a finding for the plaintiff, and it is not shown that the order of nonsuit was erroneous and prejudicial to the plaintiff. The nonsuit was At the conclusion of the testimony, countherefore correctly ordered. Bank v. Nicker-sel for defendants prayed for binding inson, 108 Me. 341, 80 Atl. 849. "In making such an order the justice does not determine any disputed questions of fact, nor does he pass upon the credibility of the witnesses, nor upon the weight of the evidence. He rules that there is no evidence to support the action. This is a ruling upon a question of law. Whether the evidence is sufficient is a question of fact. Whether there is any evidence is a question of law." Brooks v. Libby, 89 Me. 151, 36 Atl. 66. "A nonsuit is properly ordered, when there is no evidence to support a finding which is essential to the plaintiff's right to recover." Veano v. Crafts, 109 Me. 40, 82 Atl. 293; Bryant v. Paper Co., 103 Me. 32, 68 Atl. 379. The entry will be: (6 Boyce, 81) PLEASANTON et ux. v. KRONEMEIER et ux. (Superior Court of Delaware. New Castle. Jan. 24, 1916.) 1. TRIAL 134-ACTIONS-JURY QUESTIONS. Where no evidence was offered in support of a count of a complaint, it cannot be submitted to the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. 317; Dec. Dig. 134.] 2. LIBEL AND SLANDER 7(19)-WORDS ACTIONABLE PER SE-SPECIAL DAMAGES. The second count, as follows: "She (meaning the said Anna Marie Pleasanton, the lawful wife of the said Hiram Harry Pleasanton, the plaintiffs as aforesaid) "is a sport, she has men running after her and she entertains men at her home in Odessa when her husband is away from home," meaning, etc. The pleas were not guilty, release, and act of limitations. structions for the reason: That the words set forth in the narr. are not actionable per se, and as no special damages are alleged in the narr. the plaintiffs cannot recover; for in such case special damages must be pleaded and proved at the trial. Kinney v. Hosea, 3 Har. 400; Bennum v. Coursey, 7 Pennewill, 74, 76, 76 Atl. 53; Donohoe v. Star Publishing Company, 4 Pennewill, 166, 184, 55 Atl. 337; Kennedy V. Woodrow, 6 Houst. 50; 25 Cyc. 317 and 454; Newell on Slander and Libel, 866 and 872. For the plaintiff it was contended that the words declared upon are actionable in themselves, without any allegation or proof of special damages. The reputation of a female for chastity, by the common consent of mankind, is regarded with peculiar jealousy. Newell on Slander and Libel, 153, § 1; Odgers, Libel and Slander, 84; Cox and Wife v. Bunker and Wife, 1 Morris (Iowa) 269; Rhoades v. Anderson and Wife (Pa.) 13 Atl. 823; Smith v. Silence, 4 Iowa, 321, 66 Am. Dec. 137; Wilson v. Beighler and Wife, 4 Iowa, 427; Truman and Wife v. Taylor and Wife, 4 Iowa, 424; Hosley v. Brooke and Wife, 20 Ill. 116, 71 Am. Dec. 252; Kelley A defamatory statement that a female was and Wife v. Dillon, 5 Ind. 426; Blickenstaff a whore, not charging an indictable offense at and Wife v. Perrin, 27 Ind. 527; Rodgers v. common law or under the statute, is not action- Lacey, 23 Ind. 507; Ranger and Wife v. Goodrich, 17 Wis. 78, 79, 80; Cleveland v. Detweiler and Wife, 18 Iowa, 299; Miller v. Parish, 8 Pick. (Mass.) 385; Richardson v. Roberts, 23 Ga. 215; Buscher v. Scully, 107 Ind. 246, 5 N. E. 738, 8 N. E. 37. If the defendant uttered the slanderous words designedly to prejudice or injure the plaintiff, that is what the law calls express malice, and if the defendant repeated these words on other occasions, this would be evidence of express malice and would warrant exemplary or vindictive damages. Goslin v. Cannon, 1 Har. 3; Parke v. Blackiston, 3 Har. 373; Tatlow v. Jaquett, 1 Har. 333, 26 Am. Dec. 399. Where no evidence is offered as to damages, the jury are in no way bound to give nominal damages only; they may give such substantial damages as will compensate the plaintiffs for such defamation. Newell on Slander and Libel, 647, 648, § 13. If the defendant, Rebecca Kronemeier, called the plaintiff, Anna Marie Pleasanton, a whore, or if she said that the plaintiff was indulging in prostitution, or words to that effect, these words would constitute slander. HEISEL, J. (charging the jury). Gentlemen of the jury: The court have been requested by counsel for the defendants to instruct you to return a verdict in their favor in this case. The court is always reluctant to grant such requests, and do so only when satisfied that the law in the particular case requires it. In this case the declaration contains two counts; the slanderous words alleged in the first count are: "She (meaning one of the plaintiffs) is a whore, she came out of a whorehouse (meaning thereby that the said plaintiff was a female who prostituted her body for hire and was or had been an inmate of a house of prostitution and ill-fame, and was a prostitute and adulteress and had practiced fornication and adultery for hire)." [1] There has been no evidence adduced in support of the second count, therefore that count could not be for your consideration; so that if plaintiffs can recover at all, they must recover under the allegations of the first count and the evidence adduced to support it. therefore there is neither presumption of malice nor presumption of injury, and there being no allegation or proof of special injury, there is nothing for your consideration under the first count of the declaration. That is, the words alleged to have been uttered by one of the defendants, even if uttered, and if true, do not charge one of the plaintiffs with a crime; and therefore the plaintiffs, in order to recover even nominal damages, must show they have received some special injury, which can be measured in dollars and cents. This plaintiffs have been unable to do. We feel constrained therefore to direct you to return a verdict for the defendants. Verdict for defendants. (128 Md. 50) AMERICAN FIDELITY CO. OF MONTPELIER, VT., v. STATE, to Use of SHORT & WALLS LUMBER CO. (No. 99.) (Court of Appeals of Maryland. March 2, 1916.) 135-REPEAL-AMENDMENT. 1. STATUTES Acts 1908, c. 141, § 32d, requiring all contracts for the construction of roads should be let on competitive bidding and that the successful bidder should give a bond, was repealed and went into effect before chapter 721 of the same re-enacted by Acts 1910, c. 218. This statute acts, which repealed and re-enacted with amendments section 32d, that had become article 91, $32d, of the Code of Public General Laws. Held that, there being no constitutional inhibition, the section as repealed and re-enacted by Acts 1910, c. 721, was valid. [Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 202, 203; Dec. Dig. ~135.] 2. PRINCIPAL AND SURETY 59-COMMERCIAL SURETIES-LIABILITY OF. A commercial surety is not a favorite of the law, being practically an insurer. [Ed. Note. For other cases, see Principal and Surety, Cent. Dig. §§ 103, 1032; Dec. Dig. 59.] Under Acts 1910, c. 721, which amends and re-enacts Code Pub. Gen. Laws, art. 91, § 32d, so as to provide that, where the contract for work and materials in the construction of a road shall be given out after competitive bidcute a formal contract and shall deliver a bond ding, the successful bidder shall promptly exewhich shall not be accepted unless the obligors bind themselves to the payment of all just debts for labor and materials incurred by the bidder, the obvious purpose of the law requir ing the giving of a bond being to protect laborers and materialmen, the state may sue the sureties for the benefit of such laborers and materialmen. [Ed. Note.-For other cases, see Highways, Cent. Dig. § 350; Dec. Dig. 113(5).] Appeal from Baltimore City Court; James P. Gorter, Judge. Action by the State of Maryland, for the use of the Short & Walls Lumber Company, a corporation, against the American Fidelity Company of Montpelier, Vt. From a judg |