were false and malicious; but it does not admit that the words in themselves are actionable per se, nor does it admit that they are, when read by themselves, or in connection with the colloquium, capable of the meaning ascribed to them in the innuendo. If it be conceded that the words as interpreted by the innuendo are actionable, the question whether the innuendo is good, that is to say, whether it is fairly warranted by the letter, when read in connection with the inducement and colloquium, still remains as a matter of law for the court. It is the office of the innuendo to explain the words of the alleged slander, and to give them their true meaning. It cannot, however, introduce new matter, or enlarge or add to the sense of the words declared on, or properly impute to them a meaning not justified, either when taken alone or in connection with the inducement and colloquium. Lewis v. New, 81 Md. 466, 32 Atl. 246, 29 L. R. A. 59; Dorsey v. Whipps, 8 Gill, 462: Haines v. Campbell, 74 Md. 158, 21 Atl. 702, 28 Am. St. Rep. 240; Avirett v. State, 76 Md. 510, 25 Atl. 676, 987;¦ Barnes v. State, 88 Md. 347, 41 Atl. 781; Goldsborough v. Orem, 103 Md. 681, 64 Atl. 36; Weeks v. News Pub. Co., 117 Md. 126, 83 Atl. 162.

Taking the language as used in the declaration, together with the admissions necessarily made by the demurrer, and the allegation that the plaintiff had been injured thereby, the demurrer was properly overruled.

[4] The case then proceeded to trial. The sole exception reserved was the exception of the defendant to the ruling of the court on the prayers, and the important ruling was the refusal of the defendant's first prayer, by which the court was asked to instruct the jury that the plaintiff was not entitled to recover. As a part of the proof of the plaintiff's case, he had offered in evidence the letter, a portion of which had been selected and declared on in the narr. as constituting the al-' leged slander. From that, it appears that immediately following the language declared on is this sentence: "Your immediate attention to returning my property will oblige yours truly. Kindly answer instantly, or I will put the case in my attorney's hands."

[5] By the language which was quoted in the narr. as explained by the innuendo, it was averred that the appellee was charged with the crime of embezzlement, which is the fraudulent appropriation of property by a person to whom it has been intrusted, and is sometimes said to be a species of larceny. Black's Law Dict. 419.

return of certain property supposed to be in the possession of the party on whom the demand was made, without charging him with the animus furandi.

In Peterson v. Sentman, 37 Md. 140, 11 Am. Rep. 534, this court has said: "Words will not be construed to impute a crime, if in their milder sense they have another and harmless meaning, unless the connection in which they are used and applied would give to them that effect." And in the first volume of Poe, Plead. & Prac. § 173 (3d Ed.) that author says: "Words take their actionable character from the sense in which they appear to have been used, and that in which they are likely to be understood." This rule has been distinctly recognized in Brinsfield v. Howeth, 107 Md. 278, 68 Atl. 566, 24 L. R. A. (N. S.) 583, and De Witt v. Scarlett, 113 Md. 47, 77 Atl. 271; and in the most recent case where the entire subject was elaborately considered, and all of the authorities carefully reviewed, Weeks v. News Pub. Co., 117 Md. 126, 83 Atl. 162, it was said: "Where the words are ambiguous, or have an actionable and nonactionable meaning, the actionable character sought to be given them in the innuendo; that is to say, the sense in which the plaintiff avers they were used must be supported by such an averment and colloquium as will warrant the defamatory meaning ascribed to them in the innuendo."

A fortiori where the proof has been introduced, and the language of the entire statement fails to warrant the defamatory meaning attempted to be ascribed in the declaration, the actionable character of the language fails, and the case is properly to be withdrawn from the consideration of the jury.

It was therefore error to have refused the defendant's first prayer. The view taken of the language being as already set forth, it becomes unnecessary to discuss the other points in the case argued by counsel for the parties.

The judgment will accordingly be reversed. Judgment reversed, without a new trial.

CLARK v. CLARK.

(122 Md. 114)

(Court of Appeals of Maryland. Dec. 19, 1913.) CONTRACTS (§ 108*)-CUSTODY AND CONTROL OF CHILD.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 498 503, 505, 507-511; Dec. Dig. $ 108.*]

Appeal from Circuit Court No. 2 of Balti

Bill for specific performance by Jane C.

Clark against Stephen J. Clark. From an order overruling his demurrer, defendant appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, BURKE, THOMAS, PATTISON, URNER, STOCKBRIDGE, and CONSTABLE, JJ.

tody thereof, and, further, to pay the plaintiff, in consideration as above set forth, a sufficient sum to pay the board of the plaintiff, and to take care of her generally.

BRISCOE, J. The bill of complaint in this case was filed by the appellee against the appellant in circuit court No. 2 of Baltimore city for the specific performance of a contract. The defendant, the appellant here, demurred to the bill, and, for cause of demurrer, stated (1) that the plaintiff has not stated in her bill such a case as entitles her to relief in equity against this defendant; (2) that the alleged contract is not a proper contract to be specifically enforced because against public policy; (3) that the contract is too vague and uncertain to be specifically enforced; and (4) that no contract binding upon the defendant is set up in the bill. The court below, upon hearing, overruled the defendant's demurrer, and held the contract to be a valid and enforceable contract, and gave leave to the defendant to answer the bill, within 20 days from the date of the decree. From the order overruling the demurrer, the defendant has appealed.

The court below, in its order, states that the sole ground relied upon by the defendant in support of the demurrer was that the bill did not set up a valid contract, and that all other grounds for demurrer were waived at the hearing.

The facts upon which this controversy rest are set out in the bill, and it will be necessary for a clear understanding of the case that the substantial averments of the bill should be restated somewhat at length.

The bill avers that the plaintiff was married to one ne Howard L. Clark, the son of the defendant, about 16 years ago, and, as the result of the marriage, one child, Edna D. Clark, was born, who is now 15 years of age, and that she was divorced from him about 5 years ago.

By the second paragraph of the bill, it is alleged that, after the plaintiff was separated from her husband, the defendant, Stephen J. Clark, her husband's father, a resident of the city of Baltimore and state of Maryland, on or about the 1st of February, 1912, entered into a contract and agreement with her, as follows: That, if she would turn over to the defendant her daughter, Edna D. Clark, the defendant to have the care and custody of her, in consideration of this turning over of her daughter to the defendant, the defendant agreed to educate the said Edna D. Clark,

tween her and the defendant on the 1st day of February, 1912, began to pay to her the sum of $6 per week, and continued to pay the sum of $6 per week until the 24th day of April, 1912, when he ceased to pay anything, and, although she has called upon the defendant to keep his agreement in reference to the weekly payments to her, yet the defendant has refused so to do.

By the fourth and fifth paragraphs of the bill, it is alleged that the defendant is a man of large means, and the plaintiff, realizing that the defendant was perfectly able and capable of carrying out the agreement made with her, entered into the same with him, the agreement to continue during the lifetime of the plaintiff; that, before the agreement made with the defendant, the plaintiff and her daughter lived together, and were happy and contented, but since the agreement, and in fulfillment thereof upon the part of the plaintiff, she and her daughter have been separated, the care, control, and custody of the same being turned over, as above set forth, to the defendant, and by reason of the agreement the plaintiff was compelled to give up her little home, which was occupied by herself and daughter, because she could not live in her house alone, and consequently she took a boarding place, and, because the de fendant has refused to keep his agreement, she did not have sufficient income to pay her board, and has been compelled to seek employment in order to do so, which would not be necessary if the defendant had kept his part of the agreement.

By the sixth paragraph, it is averred that, during the lifetime of Edna D. Clark, the infant daughter, the plaintiff has had the sole care and custody of her, supported and maintained her out of her individual funds, but, believing that the defendant had ample means to educate and maintain her daughter, which would be to her greater advantage, entered into the contract as above set forth, and, unless this honorable court compels, by its proper decree, the performance of the contract on the part of the defendant, she will continue to suffer, as she has already done, serious loss and irreparable damage.

The bill then avers that it will not be equitable and just for the defendant to perform one part of his contract, and to leave the other part unperformed, and, inasmuch as the plaintiff has no adequate redress at law, she asks a court of equity to pass a decree compelling the defendant specifically to

which he has failed to do, as alleged herein. The prayer of the bill is (1) that the defendant be required, by decree of court, specifically to perform all of the terms and conditions of the contract mentioned in the bill, and (2) for other and further relief, as her case may require.

The contract which is sought to be enforced in this case, it will be seen, is set out in the second paragraph of the bill, and it is assailed upon the ground that it is a contract by which a parent transfers and surrenders the care and custody of her child to another for a selfish consideration, and is therefore void and invalid as against public policy.

The principle is well settled, independent of statute, that a parent cannot, by contract, divest himself of his parental obligations, or commit them to the keeping of another, unless the agreement be for the benefit and best interest of the child.

In Brantly on Contracts, § 105, it is said the doctrine of the English courts and those of some of the states is that a parent cannot lawfully deprive himself of the control and custody of his children, and that consequently a contract by which a parent transfers the custody of his child to another, and divests himself of his parental duty and power, is void as against public policy. In re Andrews, L. R. 8 Q. B. 153; State v. Baldwin, 5 N. J. Eq. 454, 45 Am. Dec. 397; Wood v. Deaton, 93 Tex. 247, 54 S. W. 901; Hibbette v. Baines, 78 Miss. 695, 29 South. 80, 51 L. R. A. 839.

It is also stated, however, the ruling of some courts is to the effect that a contract by the parents or the surviving parent transferring the control of the child is valid when the consideration is based upon the welfare and for the advantage of the child. Some courts, indeed, make the validity of the contract depend upon whether or not it promotes the welfare of the child. Weir v. Marley, 99 Mo. 484, 12 S. W. 798, 6 L. R. A. 672; Kelsey v. Green, 69 Conn. 291, 37 Atl. 679, 38 L. R. A. 471; Stringfellow v. Somerville, 95 Va. 701, 29 S. E. 685, 40 L. R. A. 623; Sheers v. Sterns, 75 Wis. 44, 43 N. W. 728, 5 L. R. A. 781; Van Dyne v. Vreeland, 11 N. J. Eq. 371; Hill v. Groome, 1 Beavan, 541; Neal's Executor v. Gilmore, 79 Pa. 421; Enders v. Enders, 164 Pa. 266, 30 Atl. 129, 27 L. R. A. 56, 44 Am. St. Rep. 598.

In 9 Cyc. 542, under the head of "Agreements Affecting Duties of Parents," it is said: "A class of agreements of this character are those in which a father surrenders the custody of his infant child. Such agreements are not binding if they are contrary to the child's interests, for a parent 'cannot bind himself conclusively by contract to exercise, in all events, in a particular way, rights which the law gives him for the benefit of his children, and not for his own.' Such agreements, however, may be valid and

for the best interests of the child." Andrews v. Salt, L. R. 8 Chan. 622; Hussey v. Whiting, 145 Ind. 580, 44 N. E. 639, 57 Am. St. Rep. 220; Enders v. Enders, 164 Pa. 266, 30 Atl. 129, 27 L. R. A. 56, 44 Am. St. Rep. 598; Van Dyne v. Vreeland, 11 N. J. Eq. 371; Hill v. Groome, 1 Beav. 540, 17 Eng. Chan. 540; Neal v. Gilmore, 79 Pa. 421; Bonnett v. Bonnett, 61 Iowa, 199, 16 N. W. 91, 47 Am. Rep. 810.

While the case at bar is not altogether free from difficulty, we have been unable, after the most diligent search, to find a case where a contract such as the one now before us has been stricken down, or declared void as against public policy and good morals.

The principle announced in the cases cited by the appellant in his very carefully prepared brief are not applicable to the special facts of a case like this, and cannot be held as controlling on this appeal.

The case of Enders v. Enders, 164 Pa. 266, 30 Atl. 129, 27 L. R. A. 56, 44 Am. St. Rep. 598, decided by the Supreme Court of Pennsylvania as late as October, 1894, is directly in point. The court, after stating the contract between the grandfather and the son's wife, said: "We concede the authorities establish that the contract of a parent, by which he bargains away for a consideration the custody of his child to a stranger, he attempting to relieve himself from all paternal obligation, and place the burden on another, who is to shoulder it, without natural affection or moral obligation to prompt to the performance of parental duty, but only because of a bargain, is void as against public policy. Such a contract would be the mere sale of a child for money. But this was a family compact. The pride of the grandfather centered on the child as his only living male descendant, in whose future there was promise; he was called by his name, and without question, both in blood and affection, he stood near to him. Nor was his relation to the child wholly without legal responsibility. * * We are clearly of the opinion that the tendency of such contracts by grandparents of good character and ample estate, and parents in reduced circumstances, where parental solicitude and affection are not to be extinguished, and where the welfare of the child is intended to be promoted, is neither to the injury of the public nor of good morals. ** * * The payment to be made the mother was by the contract fixed at the majority of the child; but there never was a time during its existence that the law would have declared it void as against public policy, because it contemplated no severance of the parental relation, no extinguishment of parental solicitude, and was wholly for the welfare of the child. Such a custody as was necessary to gratify the pride and affection of the grandfather and, further, the boy's education was relinquished; a custody not unlike that which she would