Hinks, 21 Md. 406; Lincoln v. Quynn, 68 Md. 299, 11 Atl. 848, 6 Am. St. Rep. 446; Cent. Tr. Co. v. Arctic Ice Mach. Co., 77 Md. 202, 26 Atl. 493. The rule that defective or unrecorded mortgages and secret trusts cannot be enforced to the prejudice of subsequent creditors, whose debts were contracted without notice of such mortgages or trusts, is equally as well established. Dyson v. Simmons, 48 Md. 207; Textor v. Orr, 86 Md. 392, 38 Atl. 939. The latter rule, however, has never been applied in this state to conditional or fraudulent sales, and as to the latter the rule has been that the title of the vendor may be enforced against all persons except bona fide purchasers who dealt with the vendee without notice of the fraud. In Hall v. Hinks, supra, the rule applicable to fraudulent sales, and the principle upon which that rule was based, were held to apply to sales where the vendor reserved title to the property. In that case Judge Bartol said: "As to the effect of the alleged fraud on the part of Reed in obtaining the possession. All the authorities agree that although as between the original parties a sale and delivery of goods obtained by fraud is void and may be rescinded at the election of the vendor, and the property 383]. ** reclaimed from the fraudulent vendee, yet, if they have passed into the hands of a bona fide purchaser without notice, he takes a good title, which cannot be impeached by the defrauded vendor. It is not necessary to cite authorities in support of this proposition; we have said there is no conflict upon this question; and the principle has been recognized by the Court of Appeals expressly in Powell v. Bradlee [9 Gill & J. 220], and incidentally in Ratcliffe v. Sangston [18 Md. As to the effect of the condition under which the sale and delivery was made to Reed, supposing the contract to have been made with reference to the custom. An examination of the authorities, and a careful consideration of the subject, have led us to the conclusion that the same rule applies, and that a bona fide purchaser, without notice of the condition upon which his vendor has acquired the possession, will be protected against the claim of the original vendor, in the same manner where the sale and delivery are conditional as where the possession has been obtained by fraud. It seems to us the same equitable principle lies at the foundation of the rule and is equally applicable to both classes of cases." An assignee for the benefit of creditors is not a bona fide purchaser (Ratcliffe v. Sangston, 18 Md. 391; Tyler v. Abergh, 65 Md. 18, 3 Atl. 904; Burnett v. Bealmear, 79 Md. 36, 28 Atl. 898; Textor v. Orr, supra), and accordingly it has been repeatedly held in this state that, where the contract of sale has been procured by fraud, the vendor may recover the prop itors. Powell et al. v. Bradlee, 9 Gill & J. 220; Ratcliffe v. Sangston, supra; Peters v. Hilles, 48 Md. 506; Courtney v. Knabe & Co. Mfg. Co., 97 Md. 499, 55 Atl. 614, 99 Am. St. Rep. 456. In Ratcliffe v. Sangston, supra, the court, in stating what was necessary to constitute a purchaser from a vendee under a fraudulent contract of sale a bona fide purchaser, said: "To make such an assignment or transfer valid against the defrauded vendor, something of value, in the way of property or . money, should be given or advanced, some service rendered or liability incurred, on the faith and credit of the transfer, and as a present reciprocal consideration therefor." As an assignee for the benefit of creditors is not a bona fide purchaser, neither can a chancery receiver be so regarded. In the case of Gaither v. Stockbridge, 67 Md. 222, 9 Atl. 632, 10 Atl. 309, Chief Judge Alvey said: "The ordinary receiver of a court of chancery is supposed to be an indifferent person as between the parties to the cause, whose function or office it is to receive and preserve the property or fund in litigation pendente lite, when it is made apparent to the court that the rights of the parties concerned rethe court, and the fund or property intrusted quire such protection. He is an officer of to his care is regarded as being in custodia legis, to await the ultimate disposal thereof priorities of the parties concerned. by the court, according to the rights and court itself has the care of the property, by its receiver, and that officer, being the mere creature of the court, has no powers other than those conferred upon him by the court, or derived from its established practice. His appointment does not change the title to the property, or create any lien upon the same, in favor of any of the parties interested; his holding being for the benefit of the party who may be ultimately determined to be entitled. Booth v. Clark, 17 How. 322, 331 [15 L. Ed. 164]; Ellicott v. Ins. Co., 7 Gill, 320; Ellicott v. Warford, 4 Md. 85." The As the receiver in this case does not stand. in the attitude of a bona fide purchaser, if, as said in Hall v. Hinks, supra, we must apply the rule applicable to fraudulent sales to contracts of sales in which the vendor reserves title to the property, it would seem clear, upon the authorities cited, that the title of the appellant may be asserted against subsequent creditors and all other persons claiming under the vendee except bona fide purchasers who had no notice of his claim. It was said by Judge Alvey, in Levi v. Booth, 58 Md. 305, 42 Am. Rep. 332: “At common law, therefore, a person in possession of goods cannot confer upon another, either by sale or pledge, any other or better title to the goods than he himself has. To this general rule there is an apparent exception in favor of bona fide purchasers or ing the sale or pledge has a title defeasible on account of fraud, or by reason of a condition in the contract of sale under which he holds. Hall v. Hinks, 21 Md. 406; Donaldson v. Farwell, 93 U. S. 631 [23 L. Ed. 993]." And in the recent case of Lemp Brewing Co. v. Mantz, 120 Md. on page 183, 87 Atl. on page 816, we said: "But the defendant is not in the position of a bona fide purchaser or pledgee of the property. He can only assert such right as Bissing had. It is stated in 2 Poe's P. & P. (3d Ed.) § 531: 'As a general principle, the attaching creditor is subrogated to the rights of a debtor as against the garnishee, and can only recover by the same right and to the same extent as the debtor might, were he suing the garnishee." It is said in 35 Cyc. 677-678: "Except as the general rule may be modified by statutory provisions requiring contracts or conditional sales to be executed in a certain manner and requiring such contracts to be recorded, a conditional sale is ordinarily held to be valid as against creditors of the buyer; and in some cases this rule has been held to apply even though the creditor is a judgment creditor." In support of the text the author cites cases from Connecticut, Georgia, Kentucky, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Hampshire, New Jersey, New York, Tennessee, Texas, Utah, Vermont, and decisions of the Supreme Court of the United States. See, also, Dinsmore v. Wahmann Co., 89 Atl. 399, decided this term. The distinction between unrecorded mortgages or secret trusts and sales reserving title in the vendor is obvious. In the former the attitude of the creditor is one of resisting the enforcement of a secret charge against the debtor's property to his prejudice, while in the latter his contention could result in the application of the property of a third party to the payment of his debt, and the rule saving innocent bona fide purchasers, who may purchase money or incur liability upon faith of the apparent ownership of the vendee, should not be extended to creditors. In this case the buggies referred to were apparently sold for the purpose of resale, but there is no question here between the vendor and a purchaser from the vendee, Farmers' Supply Company, and we see no reason why a different rule should apply than the one we have stated, so far as creditors are concerned. We have disposed of the only question involved without reference to section 41 of article 83 of the Code, and it is not necessary to determine how far the rules we have stated may be modified by its provisions, as no proper construction of it could aid the contention of the appellant. ISAAC SHERMAN CO. v. CHAMPLIN et al.† CHAMPLIN v. ISAAC SHERMAN CO. (Supreme Court of Rhode Island. Feb. 13, 1914.) 1. CONTRACTS (§ 322*)-ACTIONS-BUrden of PROOF. In a building contractor's action, the burden was on it to establish the amount of its claim for extras, and, in the absence of complete and accurate data, it could not derive any advantage from the lack of definiteness in the proof of its claim. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 1754, 1768; Dec. Dig. § 322.*1 2. APPEAL AND ERROR (§ 999*)-REVIEWQUESTIONS of Fact. contract and for extras, where the jury found In a building contractor's action on the that certain work was not included in the original contract, this question was not an open one in the Supreme Court. Error, Cent. Dig. §§ 3912-3921, 3923, 3924; [Ed. Note.-For other cases, see Appeal and Dec. Dig. § 999.*] 3. APPEAL AND ERROR (8 1024*)-REVIEWQUESTIONS OF FACT. In a building contractor's action, where a witness for the contractor, in support of his testimony that the value of the labor and materials entering into an item of work was $1,186.04, gave in detail the cost of the various materials, part of which was taken from the contractor's books and part estimated, while the cost at $660, did not go so fully into details, the witnesses on behalf of the owner, who fixed and the trial judge, on motion for a new trial after a verdict for the contractor for practically the amount of its claim, reduced the verdict by deducting therefrom $200, his finding would not be disturbed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 820, 3816-3823, 3836, 3837, 4020-4022, 4025-4028; Dec. Dig. § 1024.*] 4. CONTRACTS (§ 322*)-BUILDING CONTRACTS -ACTIONS-SUFFICIENCY OF EVIDENCE. In a building contractor's action for the amount due under the contract and for extras, it appeared that certain items in the specifications were by agreement taken out of the contract, the owner agreeing to provide for the performance of the work as to such items, but that he purchased the materials therefor from the contractor and employed them to do a part of the work. On one of such items the owner saved about 5 per cent. over the price stated in the specifications by doing the work himself. As to two other items included in the specifications at $4,361, which amount was deducted from the contract price, it appeared that he paid a third person $2,300 for labor. that, although there was no evidence showing separately the value of the labor and materials furnished by the contractor for such items, it would not be unfair to the owner to allow the contractor such an amount therefor as, with the amount paid such third person, would allow the owner a saving of 5 per cent. of the price stated in the specifications. Held Cent. Dig. § 1819; Dec. Dig. § 322.*] [Ed. Note. For other cases, see Contracts, 5. CONTRACTS (§ 319*)-BUILDING CONTRACTS -DEDUCTIONS FROM CONTRACT PRICE. Where the specifications in a building contract provided for 11 mantels at a price of $325, For the reasons stated, we must affirm the $25 to be allowed for each of 9 mantels and decree of the court below. $50 for each of the others, but the owner purchased at a price of $156 two somewhat more Decree affirmed, with costs to the appellee. expensive mantels in place of two required by For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the contract, he was not entitled to a deduction | pany to recover the sum of $2,000 alleged to on account of such substitution of more than have been paid to said company in excess of $100, the specified price of the two most exwhat was due it for the building of said pensive mantels. house. As both cases relate to the same transaction, and as the evidence in both is the same, they were tried together. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 1458, 1476, 1477, 1479, 14931507; Dec. Dig. § 319.*] found for the defendant. A motion for a new trial was filed by the defendants in No. 4679 and by the plaintiff in No. 4680. The motion in the latter case was denied and in the former case was granted, unless the Sherman Company should remit from said verdict all in excess of $2,425.25. Said company duly filed its remittitur in accordance with said decision. To these decisions of the trial judge exception was taken by the defendants in No. 4679 and by the plaintiff in No. 4680, and bills of exceptions have been duly filed. 6. APPEAL AND ERROR ( 1067*)-HARMLESS In case No. 4679 the jury returned a verERROR-INSTRUCTIONS-BURDEN OF PROOF. dict for the plaintiff against both defendants On the trial together of two actions, one by a building contractor for the amount due for $4,121.90, which was practically the alunder the contract and for extras, and the oth-lowance of the plaintiff's entire claim with er against the building contractor for an interest added. In case No. 4680 the jury amount alleged to have been overpaid the contractor, the owner requested an instruction that if certain items were withdrawn from the contract, and subsequently the owner purchased materials from the contractor to do the work covered thereby, such items should be proved as extras, and, in the absence of evidence as to the value of such extras, the contractor could not recover, and that in an action of that kind the burden rested upon the contractor to prove the value of extras. The court stated to the jury that, while this was for the most part correct, he would not charge that the burden rested upon the contractor to prove the value of the extras, as it would only confuse them because of there being two cases on trial. Held that, while the court might properly have given the instruction as requested, at the same time showing the application of the rule as to the burden of proof to the peculiar conditions existing at the trial, his refusal to do so was not reversible error, as the parties were treated alike on the question of burden of proof, especially where, on a motion for a new trial, the court thoroughly and carefully revised the amount of damages awarded by the verdict. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4229; Dec. Dig. 1067.*] Exceptions from Superior Court, Washington County; Chester W. Barrows, Judge. Two actions by the Isaac Sherman Company against John Champlin and another, and by John Champlin against the Isaac Sherman Company. Verdict for plaintiff in the first action, and defendants bring exceptions. Verdict for defendant in the second action, and plaintiff brings exceptions. Exceptions of John Champlin in both actions overruled. Plaintiff in the first action or dered to show cause why judgment should not be entered for defendant Anna E. L. Champlin. Green, Hinckley & Allen, of Providence (Arthur M. Allen and Chauncey E. Wheeler, both of Providence, of counsel), for Isaac Sherman Co. Samuel H. Davis, of Westerly, and Seeber Edwards and Edwards & Angell, all of Providence, for John Champlin and another. PER CURIAM. The first-named action was brought by the Isaac Sherman Company against John Champlin and Anna E. L. Champlin to recover a balance claimed to be due for materials furnished and labor done in the construction of a house for the defendants in Westerly. The amount thus claimed is $4,007.68. The second action was brought by said John Champlin against said Sherman Com Speaking in general terms, the grounds relied upon in the first case are that the verdict was against the weight of the evidence, and that the damages as reduced by the remittitur are excessive, and in the second case that the verdict is against the evidence, although there are in addition in both cases certain exceptions to rulings of the trial judge in refusing to charge as requested. The Isaac Sherman Company declared on the common counts and proceeding, as plaintiff attempted to show by its book of account and by oral testimony, that it had furnished materials and labor in the construction of said house at a cost to it of $17,361.57. It claimed commission to the amount of $654.49 and interest to March 6, 1912, in the sum of $33.20, making its total claim to be $18.049.26. It acknowledged the receipt of payments on account to the amount of $14,041.58, leaving a balance claimed to be due it of $4,007.68. It may properly be said that no evidence was offered at the trial disputing the correctness of these charges for material and labor. Dr. Champlin in his action claimed the payment of $14,041.58 on account, as admitted by the company, and that such amount was $2,000 in excess of what was due. He testified that Isaac Sherman early in 1911 orally agreed in behalf of the Isaac Sherman Company, which was shortly to be incorporated, and of which Sherman became president, to build said house, in accordance with certain, plans and specifications then exhibited, on these terms, namely: That it would furnish the material and labor called for at cost, and that it should receive a commission of 3 per cent. for its services, provided, however, that the outside limit of the cost, including commissions, was not to exceed $15,750. Mr. Sherman in his testimony It! admits that such was the agreement. This figure, $15,750, is the aggregate of some 61 items showing the estimated cost of materials and labor entering into the construction of the house as they appeared in a certain typewritten memorandum used by the parties in making their agreement and introduced in evidence as defendant's Exhibit 3. The first three items of this memorandum are: "Foundations and cement work, $950; brick work, $3,074; lath and plaster, $1,287." Almost at the start, by mutual consent, these three items were taken out of the contract at the figures respectively named against them; the owner agreeing to provide for the performance of the work called for by them. At some time afterward while the work was in progress, by mutual agreement the hardwood floors were also taken out of the contract. It does not appear that the parties agreed as to what allowance should be made on account of the omission of this work. Exhibit 3 gives in the aggregate the sum of $617 for the material for these floors, but not as a separate item the cost of labor for laying them. The Sherman Company obtain ed from a responsible firm a bid for this work of $892. As Dr. Champlin paid $363 more than this for the performance of this work, it seems fair to reduce the amount to be paid the Sherman Company under the contract by $892 in consequence of this change in the contract. Deducting the sum of these items, which is $6.203, from $15,750, there remains $9,547 as the maximum figure for the remaining items of the original contract. This amount was still further reduced to $9,190.20, as will hereinafter appear. As the It is agreed that the extras were supplied on the same conditions as governed the original contract, namely, materials and labor at cost, with the 3 per cent. commission thereon. This being so, the ascertaining of the amount due would be a simple matter, were it not for the limit of the cost fixed for the work done under the contract which renders it necessary to separate the cost of materials and labor under the contract from the cost of those claimed to be extras. But the mode of keeping the accounts of the company adds materially to the difficulty of distinguishing, other than approximately, what amount is due under the contract and what for extras, for on the books they were not kept apart. The explanation given for not separating these two classes of work in the account is that Mr. Joslin, treasurer of the company, who kept the books, while understanding that the house was to be constructed at cost of material and labor, with 3 per cent. commission thereon, did not know that there was a limit agreed upon for the cost of the house until it was nearing completion. This lack of knowledge is denied by Dr. Champlin. But the mere fact that Mr. Joslin from the outset kept the accounts as he did, without any distinction between con tract and extra work and materials, lends the ground of probability as to the correctness of his claim. The important matter is that the company's manner of keeping the account has rendered it necessary to resort to oral testimony to separate the different classes of work which has resulted in the raising of the question of the sufficiency of the testimony to establish satisfactorily some of the company's claims. The items of extras claimed at the trial by the company as outside of the original plans and specifications are all contained in two Dr. Champlin at a time when they were trying to adjust their differences and by hi introduced in evidence as defendant's Exhibits 1 and 2. The total of these two lists is $7,737.64. The item of $363 on Exhibit 1, showing the amount paid by Dr. Champlin for laying the hardwood floors in excess of the bid the company had obtained for that work, was certainly not an extra. The company's claim at the trial was that its insertion in the list was for the purpose of affording a basis for a charge of commissions only. construction of the house proceeded, there lists or statements given by the company to were somewhat numerous minor alterations made in the plans and specifications. There was also a change in the kind of wood used in the interior finish which the company claims increased the cost very materially, and a sun parlor was added, as to which there was some dispute relative to its being an extra or a part of the original contract. Moreover, although the two items, “brick work, $3,074,” and “lath and plaster, $1,287," were taken out of the contract, as already stated, Dr. Champlin bought of the Sherman Company the materials called for by those items, and also employed it to perform some of the labor thereunder. The materials and work furnished by the company for these two items are treated as extras. Broadly stated, therefore, the company's claim may be considered as falling under three heads: First, charges for material and labor supplied under the original contract; second, charges for material and la In the course of the trial it was mutually agreed that work called for by the plans and specifications of the value of $102.80 had not been done by the company. Dr. Champlin admitted as correct items of extras in the lists to the amount of $2,615.03, and the company diminished its claim of such extras by $762.12, so that when the case was about to go to the jury by agreement of counsel, with the consent of the court, for their conven them, with the other papers in the case, of whitewood. By Exhibit 3, 1,000 feet of birch which the following is a copy, namely: Isaac Sherman Co. v. John Champlin. As shown by original memoranda.... Items Disputed in Whole or in Part. (1) Extra cinder concrete and labor If the jury find that the sun (4) Pilasters (5) Estimated cost of detail drawings 165 00 $7,383 14 762 12 2,615 03 48 00 75 00 15 00 Items called for by plans and specifications, but not required of Isaac Sherman Company, and saving effected thereby: Amount agreed by parties.......... ...$102 80 and 4,000 feet of whitewood were called for. The testimony shows the actual use of 7,000 feet of birch in place thereof. It is agreed that the cost of birch and whitewood were practically the same, $70 a thousand feet. The company estimates $140 as a proper charge for the additional 2,000 feet of birch,. which, added to $2,360.80, makes $2,500.80, the amount it claims under disputed item 2. Claimed The trial judge in his rescript points out that Adm. by I. S. by J. C. this amount is clearly incorrect and excessive $ 79 95 $ 21 60 in that no allowance is made for the work 275 00 required by the contract to be done on 1,000 feet of birch, and also makes no deduction for the labor cost of ash and pine used in the finish. By deducting one-seventh of the labor cost for the 1.000 feet of birch originally re660 00 quired, he suggests that two-thirds of the remainder would be approximately $2,000. He decides that this amount is too large, and that the charge for extra materials should not exceed $125, and, after considering and commenting upon the testimony, concludes that no more than $1,500 should be reasonably charged and allowed under this item. The brief filed in behalf of the company considers these criticisms and discusses the matter in this wise. While there is nothing in the testimony specifically showing the cost of labor on the ash and pine finish, the rooms having this finish comprise almost exactly onefifth of the total area of the three floors of the house. An examination of the floor plans apparently justifies the correctness of this claim. It is then assumed that the labor charge on these rooms is one-fifth of the total labor charge, although it is at the same time suggested that such an assumption is favorable to the owner, owing to the greater elaborateness of the design of the rooms finished in birch and the greater cost of working birch as compared with other woods. One-fifth of $3,541.19 is $708.24, the amount to be allowed for the labor on the rooms finished in ash and pine. This being deducted, the remainder, $2,832.95, is taken as representing the total labor on birch. One-seventh of this last amount, or $404.71, represents the cost of labor on the 1,000 feet of birch called for by the contract. Taking this last sum out, there remains $2,428.24 as representing the cost of the labor on the birch used in place of whitewood. Two-thirds of $2,428.24 are $1,618.83, which is claimed to fairly represent the additional labor cost of birch over whitewood. Adding $140, we have $1,758.83, which the company claims indicates, as accurately as the circumstances permit, the total cost of labor and materials of birch over whitewood. But Dr. Champlin claims that one-fifth of the total cost of labor on birch should be deducted instead of one-seventh, and, if this be done, the following results would be obtained: One-fifth of $2,832.95 is $566.59. Deducting this last amount, we obtain $2,266.36 As already stated, the verdict was for $4,121.90. This the trial judge reduced to $2,425.25 by making certain deductions, amounting in all to $1,696.65. This last amount includes a reduction of $1,000 on the change from whitewood to birch and $200 on the labor charged on the sun parlor, making a total reduction of $1.317 in said charges for extras, as stated in said paper; it also includes items under the contract taken out as either not performed or only partially performed by the company, but included in the verdict, amounting to $246, and $133.65 as the reduction from the charge for commissions. The decision of the trial judge involves the allowance of items 1 and 6 in said paper and sustains the claim of Dr. Champlin as to item 4. At the hearing before this court Dr. Champlin accepts the decision of the trial judge as to these stated items for extras in dispute, excepting items 2 and 3. These are: "(2) Extra cost of changing inside finish from whitewood to birch. (3) Extra cost of stock and labor for sun parlor." These items may be considered in their order. Mr. Greenway, the company's foreman, fixed by memorandum October 5, 1911, as the date of commencing the inside finish of. the house. The total charge for labor after October 5th, as shown by the company's books, amounts to $3,541.19. The company figures the cost of working birch as three times that of working whitewood, and there was testimony to that effect which, if believed, would justify the jury in finding that to be the fact. There was much evidence to the effect that birch is a very difficult and costly wood to work. The company, therefore, computed two-thirds of the total charge for labor on the finish, or $2,360.80, as the extra labor cost |