for it in the proceeding. It is true he cannot be compelled to institute the proceeding, and it may be true, also, that, having voluntarily begun it, he cannot be compelled to continue it to a final result. If it turns out that the and when once you get astride it, you never Jercise by the state of one of its sovereign known where it will carry you. It may lead powers. The rights which are established you from the sound law. It is never argued and the privileges which are created by the at all but when all other points fail." It is proceedings are for the benefit of the whole one thing at one time, another thing at an- people. The proceeding can be instituted, it other time, and its very vagueness shows is true, only on the petition of some member that it does not admit of exact or precise defi- of the public who is interested in the question. ** nition, and that it is not easily explained. * It is a proceeding by the But, as stated by Greenhood on Public Poli-state for the benefit and advantage of all the cy, 3: "The element of public policy in the people of the state, and the petitioner aclaw of contracts, and in the law generally is,quires no special rights or advantages by it. by no means, of recent origin, but owes its In so far as his efforts are instrumental in existence to the very sources from which our procuring the establishment of a highway, common law is supplied. In fact it pervades he acts for the public. In instituting and it in every place we feel. Look into the law carrying on the proceedings, he acts, in a of constructive notice, and we find what one sense, in a public capacity. He invokes the judge called an unruly horse' pursuing us; powers of the state, and it is exercised for if we investigate the true reasons upon which the benefit of the common public, and he, in the doctrine of respondeat superior is found-a sense, represents that public, and stands ed, we find the same thing all-controlling. It is the same element which seals the lips of a counsel forever against any disclosure of confidential communications from his client: it protects the home by denying to either husband or wife the power to reveal the se-burdens likely to be imposed upon him are crets told to each other; it secures the peo- greater than was anticipated when he instiple against the corruption of justice or the tuted the proceedings, it may be that he has public service, and places itself as a barrier the right to retire from them, or discontinue before all devices to disregard public conven- them entirely. But when he has assumed a ience. * ** It is the corner stone of the position of trust toward the public, and inwhole structure of res judicata itself. We stituted a proceeding of public concern, he hear now and then complaints against the cannot be permitted to make the question application of public policy to the law; that | whether he will remain in the position or conit is an usurpation of legislative power; tinue the proceeding a matter of private barthat the Legislature is the only competent gain for his own emolument. One occupying guardian of the interests of the people-the a public office has the undoubted right to reonly authorized interpreter of their senti- sign his position. But if a public officer were ments-and that the power of the courts to agree with one who, for any reason, was should be confined to such matters of policy desirous that a vacancy in the office should as the Legislature has dictated. Its defend-be created, that for a money consideration he ers, however, have only to point with pride to the numerous rules of law which are based upon it, to justify the action of the courts." We have no disposition to create a new head of public policy, or to extend the established and well-settled rules to cases not falling fairly within them. But we cannot escape the conclusion that contracts of the character sued on in this case are against public policy and void: First, because they are an evasion of the law; and, secondly, because they are evil in their tendency. The recognition of such contracts would open wide the door for fraud on the law and for the imposition of unjust burdens upon the people. would resign the office, it would hardly be contended that such contract was enforceable. Yet it seems to us there is no difference in principle between that case and the one before us. The highest considerations of public policy demand that all duties in which the state and the public are concerned shall be performed with fidelity; and no man who has once assumed the performance of such duties should be permitted to make the question whether he will continue in their performance a matter of private speculation." There are stronger reasons for holding that a contract between petitioners for a road and the contractors, which induced the opening of the road, should be void, because the abus [3] The proceeding inaugurated by the pe-es and evil consequences to the public might titioners was, in legal contemplation, for the be much greater. The Iowa case announces benefit and advantage of the people generally. the safe rule which should be applied to In Jacobs v. Tobiason, 65 Iowa, 245, 21 N. W. cases of this kind. It was the manifest in590, 54 Am. Rep. 9, it was held that a con- tention of the act of 1904, chapter 225, that tract made with a view of preventing the es- the petitioners for the road or the improvetablishment of a public highway was con- ment thereof should actually assume their trary to public policy and void. "Proceed- share of the cost of the work, and any arings for the establishment of public high-rangement, or combination, or agreement ways," said the court, "are essentially pub- with contractors, whereby they may be re by the law, either directly or indirectly, is a fraud on, or at least a palpable evasion of, the law. The recognition of such contracts would open the way for the necessary expenditure of public money, and would tend to introduce into the administration of the road system grave injury to the public. For the reasons stated, the judgment will be reversed without awarding a new trial. Judgment reversed, without awarding new trial. Costs to be paid by the appellees. (122 Md. 177) in which the Maag-Wahmann Company of Baltimore claimed property attached. From a judgment for the claimant, plaintiff appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ. Geo. Washington Williams and John Holt Richardson, both of Baltimore, for appellant. C. Arthur Eby, of Baltimore (Ernest C. Hatch, of Towson, on the brief), for appellee. PATTISON, J. In this case the appellee, DINSMORE v. MAAG-WAHMANN CO. OF the Maag-Wahmann Company, on the 22d BALTIMORE. (Court of Appeals of Maryland. Jan. 13, 1914.) 1. EVIDENCE (§ 419*)-PAROL EVIDENCE TO VARY WRITING. Where a contract of conditional sale of a bake oven stated that the purchase price was $275.90, to be paid in monthly installments, evidence that this was not the full purchase price, but the balance remaining due after the application of a cash payment, and the value of an old oven taken in part payment, did not violate the rule against parol testimony to vary, add to, or explain a written instrument. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.*] 2. SALES (§ 464*)-CONDITIONAL SALES-VA LIDITY. day of July, 1912, through Joseph D. Maag, a stockholder and salesman of said company, sold a bake oven, with pyrometer, unto one Emil Keppler, who conducted a bakery and general merchandise store at North Point, Baltimore county, Md. At the time of the delivery of said property a contract was executed by Maag, for and on behalf of the Maag-Wahmann Company, and Emil Keppler. By it the purchase price of the oven was stated to be $275.90. This was to be be paid in installments of $25, payable on the 22d day of each month, accounting from August, 1912. The property was to be held by Keppler as the property of the MaagWahmann Company, and the title thereto was to remain in said company, and was not to be acquired by Keppler until the purchase price was fully paid. Keppler was not to remove the property from his place of business, where it was to be located, nor to sell or pledge it, or any part of it, without the consent in writing from said com Conditional sales, whereby the title and ownership of the thing sold, though delivered to the purchaser, does not vest in him until the purchase price is paid, are not unconscionable or against public policy, and are recognized as valid by Uniform Sales Act (Code Pub. Civ. Laws, art. 83, § 22), providing that a contract to sell or a sale may be absolute or conditional, and section 39, providing that, where there is a contract to sell specific or ascertained goods, the property therein is transferred to the buyer at such time as the parties to the contract in-pany, and upon default in any of said paytend it to be transferred; regard being had to the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case. [Ed. Note.-For other cases, see Sales, Cent. Dig. § 1352; Dec. Dig. § 464.*] 3. SALES (§ 474*)-CONDITIONAL SALES-NECESSITY OF RECORDING. Code Pub. Civ. Laws, art. 21, § 43, providing that no personal property whereof the vendor, mortgagor, or donor shall remain in possession shall pass, alter, or change, or any property therein be transferred to any purchaser, mortgagee, or donee, unless by bill of sale or mortgage acknowledged and recorded, but that nothing therein shall be construed to extend to any sale or gift where it is accompanied by delivery, nor to invalidate the transfer as between the parties, does not apply to conditional sales where the vendor parts with possession, and, there being no other statutory provision requiring such recording, recording is not necessary as against an attaching creditor of the vendee, who, as a general rule, can assert only such right as the vendee had. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 1391-1402; Dec. Dig. § 474.*] Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge. "To be officially reported." Action by Marion G. Dinsmore, trading as F. M. Dinsmore & Co., against Emil Keppler, ments and conditions, or in case of any other breach of the agreement, Keppler's right to the possession of said goods terminated, thorized to enter upon his premises, or wherand the Maag-Wahmann Company was auever the same might be found, and take possession of said property, in which case the money paid on account prior to such retaking was to be held as compensation for the use of the goods, and no part thereof was to be returned to Keppler. The contract also provided that the company, at its option, could give more time for the payment of the installments and accept smaller payments than were mentioned and agreed upon in such contract, without vitiating it in any particular; but, upon the completion of said payments, and the full performance of the contract on the part of Keppler, the property was to be his. The appellant, F. M. Dinsmore & Co., on February 20, 1913, sued out an attachment against Keppler, as an absconding debtor, upon an indebtedness of $155.14 owing to it by Keppler. Under this attachment the oven mentioned, together with certain other property, not including the merchandise in the store, was seized and levied upon, and in the course of the proceedings an order of court | Keppler for the oven sold to him; but that was obtained under which the property so attached was thereafter sold, and the proceeds deposited in court. On March 8th the appellee company came into court and claimed the oven and pyrometer to be its property, and not subject to condemnation under the attachment for the debt owing by Keppler to the appellant. Issues being joined thereon, the case was heard by the court sitting as a jury, and the trial resulted in a verdict for the claimant for the sum of $189.09, the amount found by the court to be due on the purchase price for said oven, and upon which a judgment was thereafter entered for that amount, with interest, and costs. In the progress of the trial two exceptions were taken to the admission of the testimony and one to the ruling of the court upon the prayers. The contract of sale was offered in evidence by the plaintiff, but was objected to by the defendant, and admitted by the court subject to exception. [1] The attention of Maag, the party by whom the property was sold to Keppler, and by whom the contract was executed for and on behalf of the Maag-Wahmann Company, when upon the stand, was called to the fact that the contract stated the price to be $275.90, and he was asked, "Was that the full purchase price for this oven?" to which he replied that it was not, that the full purchase price was $450.90. He was then asked why the contract stated it to be $275.90; this question was objected to, but admitted under the exception. The witness, in answer to the question, stated that the oven was sold for $450.90; that in part payment therefor the old oven was taken, for which Keppler was allowed $125, and at such time $50 was paid in cash; this left the amount of $275.90, which amount is named in the contract, and is the amount that was to be paid in monthly installments of $25. The witness then testified that four payments were thereafter made upon the purchase price of the oven, three of $25 each, and one of $11.81, making in all $86.81, which reduced the amount owing under the contract to $189.09. The only other witness who testified in the case was the sheriff, who was produced on the part of the plaintiff. At the conclusion of his testimony the defendant moved to strike out of Maag's testimony all reference to any other price of the oven than the one mentioned in the contract of sale. This motion was overruled. This is the first exception. We find no error in the ruling of the court in admitting this testimony. The price or amount that the Maag-Wahmann Company charged and received for ovens of this size and character was $450.90, and this was the amount had been reduced, prior to the execution of the contract, by the acceptance of the old oven, at an allowance therefor of $125, and a cash payment of $50, leaving $275.90 owing by Keppler at the time the contract was executed, and it was for the payment of this amount in monthly installments that this contract provided. It was the price or amount to be paid in monthly payments before he was to acquire title to the property mentioned in the contract. The admission of this testimony we think is entirely proper, and in no sense violates the general rule of law that forbids a written instrument to be varied, added to, or explained by parol testimony. The second exception, which is to the admission of the contract in evidence, will be considered in connection with the ruling upon the prayers. The defendant offered three prayers, all of which were refused. The plaintiff asked for no instructions. The first prayer of the defendant asked the court to instruct the jury that there was no legally sufficient evidence to entitle the claimant to recover; the second, that there was no legally sufficient evidence to show a conditional sale of the oven; and by the third prayer the court was asked to instruct the jury "that, from the undisputed evidence in this case, the instrument mentioned in the evidence was executed more than six months prior to the issuing of the attachment, and that the said instrument had not, at the time of the issuing of said attachment, been recorded, and that there is no evidence legally sufficient to show notice, either actual or constructive, of the existence of the said instrument on the part of the plaintiff in the attachment." The second exception, which goes to the admissibility of the contract, and the exceptions to the ruling upon the prayers all raise the question as to the necessity of recording contracts of conditional sales, as other instruments of writing specifically named in the registration acts are recorded, in order to protect the rights of the claimants thereunder in attachment proceedings, where the property so sold is sought to be condemned for the payment and satisfaction of an indebtedness owing by the vendee to such attaching creditor. In this case the contract was not recorded. [2] The validity of these so-called conditional sales, where the contract provides that the title and ownership of the thing sold, although delivered to the purchaser, shall not vest in him until the purchase price therefor as paid, is recognized under what is known as the Uniform Sales Act (article 83, §§ 22 and 39), and their validity has always been recognized by this court, as well as by the courts of many other states of the Union, where it has been held that such contracts in any way contravene public policy. 35 Cyc. | prayers of the defendant. The judgment will 664, and the cases cited in the note thereto. therefore be affirmed. Judgment affirmed, with costs to the appellee. (122 Md. 134) "It is provided in many states that to give conditional contracts of sale validity as against third persons claiming under the buyer, as purchasers or creditors, the contract must be in writing executed and attest- DAVISON CHEMICAL CO. v. ANDREW ed in a particular manner and recorded. In the absence of such a statute recording is not essential." 35 Cyc. 682. [3] It is provided in section 43 of article 21 that: "No personal property whereof the vendor, mortgagor or donor shall remain in possession, shall pass, alter or change, or any property therein be transferred to any purchaser, mortgagee or donee, unless by bill of sale or mortgage acknowledged and recorded as herein provided; but nothing herein shall be construed to extend to any sale or gift, where the same is accompanied by delivery, nor to invalidate such transfer as between the parties thereto." This provision, as we construe it, has no application to conditional sales where the vendor parts with possession; the section referred to applies to cases where the vendor, the owner of the property, sells the property, and retains possession of it, and we know of no other provision of the statute from which it can be gathered that such contracts of sale shall be recorded, as contended for by the appellant, in order to give to them the effect contended for by the appellee, nor has this court ever held that it was necessary, in order to protect the seller's rights thereunder, to record such contracts, and we now see no reason for so holding. The defendant or appellant in this case is not in the position of a bona fide purchaser or pledgee of property without knowledge of the rights of the appellee under such alleged contract of sale, but is an attaching creditor, and such defendant, under the general rule, can only assert such right as Keppler had. The attaching creditor, as a general principle, is subrogated to the rights of the debtor as against the garnishee, and can only recover the same rights, to the same extent, as the debtor might were he suing the garnishee. And accordingly, if the garnishee has a valid lien or claim upon the property attached, growing out of a contract, express or implied, between himself and the debtor, or is in a situation to assert any legal rights against such property, the attaching creditor is equally affected by the lien, claim, or right on the part of the garnishee. 2 Poe's Pleading and Practice (3d Ed.) § 531; Lemp Brewing Co. v. Mantz, 120 Md. 183, 87 Atl. 814. MILLER CO.. (Court of Appeals of Maryland. Dec. 19, 1913.) 1. TRIAL (8 250*)-INSTRUCTIONS. Where, in an action for compensation for labor and material used in the construction of a bulkhead, defendant withdrew a plea of set-off for defective work, and there was no evidence relative to such set-off, it was error to instruct the jury to return a verdict for plaintiff if the evidence showed that it did the work and furfrom the evidence that the plaintiff is not innished the material, "provided they further find debted unto the defendant in a greater amount than that found by them from the evidence to be due the plaintiff." [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 584-586; Dec. Dig. § 250.*] 2. TRIAL (§ 279*)-OBJECTION BELOW-SUFFI CIENCY. Defendant's objection to an instruction, submitting the question whether plaintiff was indebted to it, was sufficient to comply with Code Pub. Civ. Laws, art. 5, § 9, requiring that fect, when made upon the ground that, defendan objection to an instruction point out the deant's "claim of set-off having been withdrawn by leave of court and the pleading amended by striking out such plea, there was no longer any such issue in the case to be submitted to the jury." [Ed. Note. For other cases, see Trial, Cent. Dig. § 690; Dec. Dig. § 279.*] 3. APPEAL AND ERROR (§ 1062*)-HARMLESS ERROR-SUBMISSION OF ISSUES. Error in submitting to the jury, after withwhether plaintiff was indebted to defendant drawal of defendant's set-off, the question was harmless, where it clearly appeared that such question was not determined by the jury, and that hence the judgment could not be res constituting the basis of the set-off. judicata in a subsequent action upon the claim [Ed. Note.-For other cases, see Anneal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*] 4. JUDGMENT (8 729*)-RES JUDICATA-SETOFF. A judgment on a verdict could not estop defendant from bringing a subsequent action on an indebtedness due it from plaintiff, which indebtedness was the basis of a set-off presented and withdrawn by leave of court, though the plaintiff's indebtedness, where it clearly appearcourt submitted to the jury the question of ed that the jury did not determine such question, and that it was not presented by the evidence. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1262; Dec. Dig. § 729.*] Appeal from Superior Court of Baltimore City; Walter I. Dawkins, Judge. "To be officially reported." There are, however, a number of well-es- Action by the Andrew Miller Company, a tablished exceptions to this rule; but the corporation, against the Davison Chemical facts disclosed by the record here do not Company, a corporation. From judgment show that this case falls within any of the for plaintiff, defendant appeals. Affirmed. exceptions. We think the contract was prop- Argued before BOYD, C. J., and BRISCOE, erly admitted in evidence, and, being so BURKE, THOMAS, PATTISON, URNER, admitted, the court properly excluded the STOCKBRIDGE, and CONSTABLE, JJ. •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Frederick C. Colston and Charles McH. Howard, both of Baltimore, for appellant. George Washington Williams and John Holt Richardson, both of Baltimore, for appellee. PATTISON, J. The appellee company in this case was employed by the appellant company to build for it a bulkhead along a part of the water front of its property at Curtis Bay, for which the appellee was to receive the net cost of the labor and material used in and upon said bulkhead, plus 10 per cent. The work was done and materials furnished, and it is to recover compensation therefor that the suit in this case was instituted. In addition to the general issue the defendant pleaded set-off to the plaintiff's declaration. The plea of set-off contained a special count, in which it was stated, in substance, that the appellant under a contract with the appellee, made on the 7th day of July, 1910, had employed the appellee company to construct for it "about 365 feet of bulkhead foundation" upon the water front of its property, in accordance with the terms of said contract, which were fully set out in the plea, for the sum of $12.23 per lineal foot; that the work was commenced under the agreement, and was completed before the construction of the part of the bulkhead mentioned in the declaration, to recover for the building of which the plaintiff's suit was brought, and before the contract therefor was executed, but that the construction was defective, and not in accordance with the terms of said agreement; that by reason of such defective construction and as a result thereof, the defendant was compelled to repair and rebuild the said bulkhead at its own expense, amounting to the sum of $2,349.86. The plaintiff joined issue on the general is sue plea, and demurred to the plea of set-off, and, upon the demurrer being overruled, the plaintiff replied that it was not indebted, and that it did not promise, as alleged, upon which issue was joined. A number of witnesses were offered by the plaintiff, who testified that the work was done and the materials furnished as set forth in an itemized statement or account filed with the plaintiff's narr., and in accordance with the terms of the contract or agreement made between the plaintiff and defendant by which the plaintiff was to build the bulkhead and the defendant was to pay the plaintiff therefor the net cost of labor and material, plus a commission or compensation of 10 per cent. pended by it in the reconstruction of said | No further testimony was taken, and the plaintiff asked the court to instruct the jury that "if from the evidence they find that the plaintiff did the work and furnished the material as set out and mentioned in the evidence, then their verdict must be for the plaintiff. Provided, they further find from the evidence that the plaintiff is not indebted unto the defendant in a greater amount than that found by them from the evidence to be due the plaintiff.” The defendant resisted the granting of the prayer, its objection being specially directed "to the latter part of said prayer, submitting to the jury any question as to whether the plaintiff was indebted to the defendant, upou the ground that its claim of set-off having been withdrawn by special leave of court and the pleadings amended by striking out such plea, there was no longer any such issue in the case to be submitted to the jury." But the court overruled the objection of the defendant, and granted said prayer, to which action of the court in overruling its said objection and granting said prayer the defendant duly excepted. [1] The only question, therefore, for us to The defendant put in evidence the contract decide is upon the correctness of the ruling mentioned in his plea of set-off for the work of the court in granting this prayer. That previously done by the plaintiff, and for portion of the prayer objected to by the which it had been fully paid under the terms defendant, and to which the attention of the of said contract, and offered evidence show-court was specially directed, should not, in ing the manner in which the work under said our opinion, have been inserted in the prayer. contract was done, and describing the de- The plea of set-off, without which evidence fects therein complained of. The defendant of such alleged indebtedness of the plaintiff was then permitted, subject to exceptions, to to the defendant could not have been admit |