passed, as aforesaid, for the sale of said prop- payment on the principal and the interest erty." By section 40 of said Act of 1898, as amended by the Act of 1914, c. 532, taxes are required to be levied in the month of November of the year preceding the year for which they are levied, and are due and may be paid on the 1st day of January following the levy. They are, by that section, declared to be "in arrears" on, and to bear interest from, the 1st day of July following the date of the levy; and section 51 of said act of 1914 requires the city collector, at least two weeks before the taxes "become in arrear," to give notice by advertisement in two daily newspapers published in the city, and in the Municipal Journal, of the date when taxes "become in arrear," and that if the taxes are not paid on or before that date the property on which they are levied will be subject to sale for taxes, and that if not paid before they become in arrear an amount equal to 1 per cent. per annum from that date will be added to each bill as a penalty. The city collector having in June, 1920, given the notice required by the act of 1898, Mr. Maxwell, the mortgagee, on the 3d of August, 1920, went to the collector's office to inquire if the taxes on the property covered by the mortgage had been paid; and, upon being informed that they had not, he asked for a bill of the taxes, and later, on the same day, took the bill, amounting to $158.42, and his mortgage to the office of J. Seymour T. Waters, Esq., an attorney at law, and employed him to "foreclose" the mortgage. Mr. Waters, on the same day, wrote to Mrs. Leon, the mortgagor, telling her that Mr. Maxwell had placed the mortgage in his hands to foreclose, and that he would be obliged to proceed to advertise and sell the property; and on the following day, August 4, 1920, he filed in the circuit court of Baltimore city a petition alleging that there had been a default under the terms of the mortgage, and praying for a decree for a sale of the property, and a decree was passed on that day appointing him trustee to make the sale. It appears from the record that a certain Abraham Forschleger had obtained title to the property covered by the mortgage, and that he and his wife, by deed dated the 30th of July, 1920, and recorded on August 6, 1920, conveyed it, subject to the mortgage in favor of Maxwell, to Joshua H. Green and Iantha G. Green, his wife, "as tenants by the entireties," who executed a second mortgage on the property to the Hebron Building & Loan Association, Incorporated, to secure an advance of $3,510. On the 5th of August, 1920, Benjamin L. Freeny, Esq., as attorney for Mr. Forschleger, and representing the building association, mailed to Mr. Maxwell his check for $500, and Mr. on his mortgage due on the 6th of August, 1920; and when Mr. Maxwell received the checks on the 6th of August he took them to Mr. Waters, who on that day returned them to Mr. Freeny, and told him they would not be accepted because there had been a default and the whole mortgage debt was due. No offer having been made in the meantime to pay the mortgage, the trustee on the 25th of August, 1920, advertised the property for sale under the decree of August 4th; and thereupon, on the 7th of September, 1920, Green and wife filed their petition in said court setting out their title to the property; alleging their tender to the mortgagee of said checks for $500 and $135, and the refusal of the mortgagee to accept the same; that at the time of said advertisement of the property for sale there was no default under the terms of the mortgage; that the terms and conditions of the mortgage had been fully complied with as far as was in their "power and control"; that they were still ready and willing to place said checks in the hands of the mortgagee or his attorney; and praying the court to pass an order restraining the mortgagee and the trustee from "further proceeding with * the sale of the property." Upon this petition the court passed an order restraining the mortgagee and trustee as prayed, unless cause to the contrary be shown on or before the day named therein. In response to this order the mortgagee and trustee filed their answers, setting out the default to which we have referred, admitting their refusal thereafter to accept the checks referred to, and alleging that no offer having been made by the petitioners, or on their behalf, to pay the whole of the mortgage debt, after waiting until the 25th of August, 1920, the trustee advertised the property for sale in accordance with the decree. On the 18th of September, 1920, the Neighborhood Corporation filed a petition in said cause, alleging that it had become the holder of the mortgage given by Green and wife to the building association; that the mortgagors were in default under the terms of said mortgage; that, while the sum secured by the two mortgages was more than the value of the property, if the property was sold at once it would bring “a sufficient sum to pay both mortgages in full"; and praying that the property be sold at once by the trustee in accordance with the advertisement. After a hearing, at which evidence was taken disclosing the facts to which we have referred, the court below, on the 20th of September, 1920, passed an order enjoining the sale of the property advertised to take place on that day, and requiring Green and wife to pay into court to the credit of Robert W. Maxwell, mortgagee, $635, $500 of (113 A.) mortgage debt,” and $135 “to be credited to the interest thereon due August 6, 1920," and also requiring Green and wife to pay the "court costs and advertising fees in the case." From that order Robert W. Maxwell, mortgagee, J. Seymour T. Waters, trustee, and the Neighborhood Corporation entered separate appeals. [1] No opinion was filed by the court below, and we do not know the ground upon which the decree appealed from was passed, but it is said in the appellee's brief: "It is not contended by the appellee that the nonpayment of the taxes for the current year does not constitute a default, but it does not constitute such a default, especially when the same were paid at once, as to permit the enforcement thereof for the purpose of oppression;" and that "equity never aids in enforcing a penalty." The mortgagor covenanted to pay "all taxes," etc., "levied and assessed" on the property "when legally payable." The undisputed evidence shows that taxes to the amount of $156.63 were payable on the 1st day of January, 1920, and had been in arrear from the 1st day of July, 1920, when the decree of August 4th was obtained, and the mortgage expressly provided that, "in case of any default being made in any covenant or condition" of the mortgage, the whole mortgage debt thereby intended to be secured "shall be deemed due and payable," and sale of the mortgaged property "may be made by the trustee" named in the decree. It is said in 1 Jones on Mortgages (5th Ed.) 76: "A stipulation that the whole sum shall become due and payable upon any default in the payment of the principal or interest is universally held to be legal and valid. It is not objectionable, as being in the nature of a penalty." The same rule is stated in 19 R. C. L & 289, p. 493, where it is said: that a stipulation in a mortgage providing that "The proposition is accepted without dispute the whole debt secured thereby shall become due and payable upon failure of the mortgagor to pay the interest annually, or to comply with any other condition of the mortgage, is a legal, valid, and enforceable stipulation, and is not in the nature of a penalty or forfeiture." These rules and principles applicable to mortgages are fully recognized and have been uniformly applied in this state. In the case of Schooley v. Romain, 31 Md. 574, 100 Am. Dec. 87, where a bill was filed to foreclose a mortgage, and where it was contended that the condition in the mortgage that upon default in payment of interest the whole principal should become due was in the nature of a penalty or forfeiture and that its breach would be relieved against in equity, the lower court said: "But in no aspect of the case can the condition of the mortgage be viewed in the light of a penalty or forfeiture, and, as such, be recourt in the case of Ferris v. Ferris, 28 Barb. lieved against in equity. The reasoning of the and apply it to this case. 29, covers this point so fully that we adopt it In this case also the equity of redemption had been sold, and the purchaser, who was a married woman, in her answer sets up the absence of her husband and her own ignorance. The facts of the case were in all respects very similar to the one now under consideration. In deciding the case the judge says: 'It is urged that this is a forfeiture, and that equity will always relieve And in section 77 of the same volume it a party against a forfeiture. The plaintiff's is said: claim is for the money secured by the bond, and interest. There is nothing more claimed. The debtor owes the amount. He forfeits nothing. He is required to pay nothing but his debt. There is no forfeiture to be relieved. Nor can it be called a penalty; that is a sum named as damages, to be recovered for violating an agreement or promise, in lieu of damages. There is no such thing here. No damages are called for. Merely altering the day In section 1181 of volume 2 of the same of payment is neither a forfeiture of any propwork the author says: "Such a provision in a mortgage is not considered a penalty, but an agreement as to the time when the debt shall become due." And in section 1185 it is said: "The court has no power to relieve a mortgagor from a forfeiture of condition that the whole principal shall become due at the election of the mortgagee upon a failure to pay the interest, or to order a stay of proceedings until a further default, unless fraud or * erty, nor a penalty in damages for the breach of any agreement.' The tender of the interest which was made in August, 1867, being after the same fell due, can have no effect to avoid the consequences of the breach of the condition." In reference to the decision of the lower court, this court, speaking through Chief Judge Bartol, said: "Upon the question of the construction of the mortgage, and the bond or obligation of Rich which the bill was filed, we entirely agree with the circuit court, and upon the reasoning contained in the opinion of that court, sent up with the record, and the authorities therein cited, we are willing to rest our decision of that question. The object of the suit is to enforce the payment of the mortgage debt and interest, according to the terms of the contract; it is in no sense a proceeding to enforce a penalty or forfeiture." In the case of Walker v. Cockey, 38 Md. 75, where the default was the failure of the mortgagor to insure the mortgaged property, this court said through Judge Miller: "We have no doubt failure by the mortgagor to insure according to the terms of his covenant in that respect constituted such default as rendered execution of the power to sell rightful and proper. * * * "The mortgagor agreed to and accepted this condition, and in reliance upon its being complied with the mortgagee parted with her money. Under these circumstances a court of equity cannot relieve the mortgagor from what, by his own deed, he agreed should be the consequence of a failure to effect insurance for the stipulated sum, no matter whether that failure arose from neglect or inability to procure such insurance." In the case of Mobray v. Leckie, 42 Md. 474, Chief Judge Bartol, speaking for the court, said: "There can be no doubt or question about the construction of the mortgage; its terms are plain and unambiguous, and expressly provide that, in default of payment of the annually accruing interest, the whole debt shall be due and payable. This is a legal and valid stipulation; the defense relied on by the appellant that it is in the nature of a penalty or forfeiture, which a court of equity will not enforce, is fully answered by Schooley & Price * v. Romain, 31 Md. 574. * "The payment of interest into court after the suit was instituted was too late, and affords no ground of defense. By the terms of the mortgage the whole debt became due and payable, and the circuit court committed no error in decreeing that unless the same be paid, or brought into court to be paid to the appellee the property should be sold." In the case of Gustav, etc., Building Ass'n v. Kratz, 55 Md. 394, under the clause of the mortgage consenting to a decree, the mortgagee filed a petition alleging default, and praying for a decree appointing a trustee to sell the property, and the decree was accordingly passed; whereupon the mortgagor filed a petition alleging that he was not in default, and praying for an injunction to restrain the sale, and the injunction was ordered. On appeal the court said: fault in this case was a violation of the covenant, and for the same reason justified the trustee in advertising. * * * It is admitted that rule 39 of the circuit court of Baltimore city allows one-half commissions to trustees in all cases where payment is made after sale has been advertised, but before it is made. The sale having been advertised, and properly so, the trustee was entitled to his commissions as a matter of right, and the disallowance was error and good ground of appeal." In the case of Condon v. Maynard, 71 Md. 601, 18 Atl. 957, the court said: "As the appellant expressly covenanted that a failure to pay the taxes would authorize an exercise of the power of sale contained in the mortgage, his objection that there has been no breach justifying the sale cannot be sustained." In the case of Union Trust Co. v. Belvedere Co., 105 Md. 525, 66 Atl. 455, Judge Pearce said: "It is true that the tax upon the capital 1906, by whom does not appear, but this paystock of the company was paid October 10, ment after a consummated default, by whomsoever made, or upon whatever authority, cannot obliterate the default, or divest any right to sell founded thereon. We are therefore of the opinion that this default, followed by the proper demand of one-fourth in amount of the bondholders, entitled the Union Trust Company, as trustee, to a decree of sale under its mortgage, and that there was error in refusing such decree." And in the still later case of Stewart v. McCaddin, 107 Md. 318, 68 Atl. 573, Judge Burke said: "There were two clear defaults on the part of the mortgagor: First, the failure to pay the interest which fell due February 7, 1907; and, secondly, failure to pay the taxes. These defaults entitled the mortgagee to a decree for the sale of the mortgaged property under the terms of the mortgage." In support of this statement Judge Burke cited all of the cases to which we have referred. In the case at bar it is admitted that taxes on the property covered by the mortgage, to the amount of $156.63, had been due and payable from the 1st of January, 1920, and had been in arrear from the 1st of July, 1920. It is therefore clear that under the terms of the mortgage the mortgagor was in default; that in consequence thereof the whole mortgage debt had become due and payable; and that the mortgagee was entitled on August 4th to a decree appointing a trustee to sell the property. Green and wife accepted the deed for the property charged with full knowledge of the terms of the mortgage and of the consequences of a failure to comply with the conditions thereof, and it is equally clear, upon principle and the authorities quoted that after the decree for a sale of the prop (113 A.) erty neither the tender of the interest and the decree appealed from must be reversed, a part of the principal of the mortgage and that, as the Neighborhood Corporation debt, nor the payment of the taxes, could, as was not a party to the suit in the court besaid by Judge Pearce, operate to "obliterate low, the appeal in No. 44 appeals must be disthe default, or divest any right to sell found- missed. ed thereon." The appellees rely upon the statement in Phelps, Equity, § 195, "Equity never aids in enforcing a penalty, nor requires a forfeiture;" but they overlook the further statement in that section: "So, in case of an agreement that the whole debt, presently due, shall be enforced, unless a stipulated installment thereof be paid by a named day, such payment, upon default in performing the condition, will not be relieved against in equity." In Nos. 42 and 43 appeals decree reversed with costs, and in No. 44 appeals, appeal dismissed with costs, and cause remanded for further proceedings. (138 Md. 388) DEANE et al. v. BIG SPRING DISTILLING (Court of Appeals of Maryland. April 8, 1921.) They also rely upon the statement of the 1. Principal and agent 22 (2)-Relation not court in Condon v. Maynard, supra: "Had these taxes been but a few days in arrear when Maynard advertised the property for sale, a different question might, perhaps, have been presented, because a court of equity is always reluctant to lend any aid towards consummating oppressive contracts, especially when its intervention would, in effect, result in the enforcement of a forfeiture." What the court evidently had in mind was a delay of a "few days" in the payment of taxes due to either neglect, fault, or fraud of the mortgagee, where a court of equity might properly refuse to allow the mortgagee to take advantage of his own neglect or wrong. But here, as the court said in that case, no such question arises, as the mortgagor, or those claiming under her, had ample time within which they ought to have paid the taxes before the proceedings for the sale of the property were instituted. [2] It is also suggested in the argument of counsel for the appellees that the proceedings were instituted by the mortgagee for the purpose of oppression. Upon the failure of a mortgagor in a mortgage like the one under consideration to pay the taxes within the time required by the mortgage, the mortgagee has the right to treat the whole mortgage debt as due, or to waive the default, and there is no legal or equitable principle upon which his right to so elect can be made to depend upon the motive prompting his election. While the sale of the property in question may result in a hardship to the appellees, under the settled principles of law and equity applicable to such cases, there is no avenue of escape for them from the consequences of their own default, or the default of those under whom they claim, except by payment of the whole mortgage debt, and such costs, expenses, and commissions as they are liable for under the law and rules of the court be low. shown by declarations of alleged agent. Agency cannot be proved by the unsworn declarations of the agent, in the absence of independent proof of facts from which the agency may be inferred. 2. Principal and agent 103 (9)-Mere proof of agency did not per se warrant inference that he could make final contract of sale. The fact that one was a salesman employed to sell products did not per se warrant an inference that he was by virtue of such employment authorized to make a contract of sale binding his employer without approval or acceptance. 3. Principal and agent 123 (7)-Proof held insufficient to warrant inference that agent was authorized to make absolute sale contract. Testimony by parties that they had purchased whisky from salesman, and that usually there was an "acknowledgment of acceptance" but "sometimes" there was not, was insufficient to warrant an inference that the salesman had authority to make absolute contracts for the sale of employer's goods without approval or acceptance, or that he was held out to the public as having such authority. 4. Principal and agent 137(1)-Mere acts showing apparent authority of agent must be known to person relying thereon. The mere fact that conduct of an employer of salesman would warrant the inference that the salesman was authorized to contract for absolute sales without acceptance or approval of the orders would not avail persons entering into absolute contracts of sale, who had no knowledge of such conduct of the employer at the time they dealt with the salesman and were not influenced by such conduct. 5. Principal and agent 137(1)—Doctrine of putative agency cannot be invoked unless knowledge of agency is shown. Estoppel is a matter personal to the individual asserting it, and one cannot invoke the doctrine of putative agency, or agency by estoppel, unless he shows that he knew of facts warranting the inference that such agency ex It follows thar in Nos. 42 and 43 appeals isted and was misled by them. other. Where salesman took two orders simultaneusly from purchaser, an acceptance of one of the orders by the employer of the salesman was not an adoption or ratification of the salesman's act in contracting to deliver the other, where the employer upon receiving the orders immediately notified purchaser by telegram that it would accept only one order and would not accept the other, and only accepted that on condition that the time of shipment be changed, whereupon purchaser telegraphed instructions for the shipment of the one order but did not 6. Principal and agent 170(2)-Acceptance | appellants 1,000 cases of whisky which were of one of two orders not ratification of al- to be ready for shipment October 24, 1918, leged agent's acts in contracting to deliver the and at the same time he took from the appellants their check for $2,000 in part payment for this whisky. Brown at once notified the appellee of what had been done, and it immediately telegraphed him that it would not accept the order. Brown told the appellants that he had been so notified, and on October 21st the appellee itself returned the check for $2,000 to appellants and notified them directly that it would not accept the order for the 1,000 cases of whisky. The appellants, however, insisted that the appellee had contracted through its agent, Brown, to sell them the whisky, and they demanded per formance of the contract. The appellee, on the other hand, did not recognize Brown's authority to contract for it and did not admit that there was any contract at all for the sale of 1,000 cases of whisky and refused to make any shipments on account thereof. After some further correspondence, the appellants brought this action in the superior court of Baltimore City to recover for the breach of the alleged contract. The declaration, in addition to the common counts. contains a special count, setting up the supposed contract to which we have referred. refer to the other. 7. Appeal and error 1056 (6)-Exclusion of evidence relating to damages immaterial in absence of right to recover. It was immaterial that the court excluded evidence concerning facts relating to damages, where complaining parties were not entitled to recover any damages at all. 8. Evidence 471(31)-Question held to call for conclusion of witness. In an action for damages for failure to deliver whisky where witness for plaintiff testified that he had placed orders with defendant company through an agent, a further question, "Was it necessary to have those orders confirmed?" did not call for the witness' knowledge of any fact material to the issues in the case, but for his opinion as to the scope of salesman's authority in transactions which he had with the witness. Appeal from Superior Court of Baltimore City; Morris A. Soper, Judge. "To be officially reported." Action by Joseph Deane and Hillard H. Deane, copartners, trading as the Tidewater & Old Dominion Distributing Company, against the Big Spring Distilling Company, Incorporated. Judgment for defendant, and plaintiffs appeal. Affirmed. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, ADKINS, and OFFUTT, JJ. At the trial of the case, at the conclusion of the plaintiffs' testimony, the jury, at the direction of the court, found their verdict for the defendant, and it is from the judgment on that verdict that this appeal was taken. The record contains 37 exceptions, of which one, the thirty-seventh, relates to the court's rulings on the prayers, and the others to rulings on questions of evidence. The rulings on the prayers rest upon the proposition that there is not in the case evidence legally sufficient to show that Brown was authorized to make the contract sued upon on behalf of the appellee, and whether there is in the case any such evidence is the important question presented by this appeal. The testimony relied upon to show Brown's David Ash, of Baltimore (Daniel Ellison, of agency is, in substance, as follows: Baltimore, on the brief), for appellants. Carl R. McKenrick and Edgar Allan Poe, both of Baltimore (Bartlett, Poe & Claggett, of Baltimore, on the brief), for appellee. OFFUTT, J. In 1918, the Big Spring Distilling Company of Louisville, Ky., was engaged in the manufacture and sale of whisky, and to aid in selling its product it employed salesmen to solicit orders therefor. At the same time the appellants, trading as the Tidewater & Old Dominion Distributing Company, were engaged in the general wholesale liquor business in Baltimore, Md. On October 18th of that year Harry Brown, a salesman, employed by the appellee, undertook on behalf of his employer to sell to the When Brown approached the appellants in October, 1918, to sell them whisky, they had known him for a couple of years and knew he was a salesman for the appellee, but had never before had any business relations with him. On that occasion he quoted them a price on whisky of $16.50 per case of quarts. The appellants thereupon ordered 1,340 cases from him. These 1,340 cases were divided into two lots, one of 340 cases, and one of 1,000 cases, which were dealt with separately, and were to be shipped separately. The first lot of 340 cases was paid for in full by certified check and a receipt for the payment given. This order was accepted and filled by the distilling company without change, except that the time for shipment was changed by |