(116 A.) 137 Md. 543, 113 Atl. 338; B. & O. R. R. Co. v. Mahone, 63 Md. at page 148. As to injury to passengers standing too near to track, see Pennsylvania R. R. Co. v. Bell, 122 Pa. 58, 15 Atl. 561; Halbert v. St. Louis & N. E. Ry. Co., 147 Ill. App. 316; Pere Marquette R. R. Co. v. Strange, 171 Ind. 160, 84 N. E. 819, 20 L. R. A. (N. S.) 1041; St. Louis S. W. Ry. Co. v. Douglas, 119 Ark. 33, 175 S. W. 518; Holmes v. Southern Pac. R. R. Co., 97 Cal. 161, 31 Pac. 834; Pendleton v. Richmond, etc., R. R. Co., 104 Va. 813, 52 S. E. 574. [5] There was no evidence of any opportunity of defendant to avoid injury to the deceased after it discovered his peril, and therefore the doctrine of the last clear chance is not applicable. See W., B. & A. R. R. Co. v. State, supra. None of the cases cited by appellee is in conflict with the principles herein stated. apartment before bathroom was tiled and in condition to be used, and before completion of hallway and stairway, requiring tenant to reach apartment by temporary passageway of boards and by lantern light, agreement for execution of lease providing for payment of rent from time of completion of building entered into prior to tenant's occupancy, required lease to date from actual completion, and not from time of occupancy, the tenant being liable prior to completion merely for the reasonable value of the occupation of the unfinished apartment, since by entering into possession under such circumstances tenant did not waive provision of agreement providing for payment of rent from time of completion. Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge. Action by William Y. Goldsborough against the Guilford Building Company. From decree rendered, the defendant appeals. Affirmed. Argued before BOYD, C. J., and BRISCOE, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Clifton S. Brown, of Baltimore (E. J. W. Revell, of Baltimore, on the brief), for appellant. Alva A. Lamkin and Albert S. J. Owens, both of Baltimore, for appellee. [6] Finally it was strenuously urged that the decision of this court on the former appeal, reported in 137 Md. 543, 113 Atl. 338, is conclusive against the contention of appellant on the present appeal. It is true we went very far in disposing of the case on that appeal to avoid a decision which would have involved a withdrawal of the case from the jury, in pursuance of the well-known rule that the question of contributory negligence should always be submitted to the jury except where there has been some act of negliURNER, J. The appellee, having been gence committed by the party injured of such duly notified to vacate the rented quarters a character as to leave no room for difference he was then occupying, agreed on August. of opinion among reasonable men as to its 18, 1920, to lease from the appellant an quality. In the former record there was a apartment in a building then under condecided conflict of testimony as to the dis- struction located at University Parkway and tance at which the approaching train could Guilford avenue in Baltimore, and known as be seen. The photograph introduced at the the Temple Court. The agreement was verlast trial, and the uncontradicted evidence in bal, but was intended to be followed by the connection therewith, as explained above, has execution of a formal lease. It was supremoved any possible doubt as to that ques-posed that the apartment would be finished tion, and really left nothing which could properly have been submitted to the jury. It follows that the judgment must be reversed. on or soon after the 1st of October, 1920, and it was agreed that the term of the tenancy should end on September 30, 1921. The rental was at the rate of one hundred and Judgment reversed without a new trial, fifty dollars per month. At the time of the with costs to appellant. (140 Md. 159) GUILFORD BLDG. CO. v. GOLDSBOR- (Court of Appeals of Maryland. Jan. 12, 1922.) Landlord and tenant 71-Tenant who enter ed into possession of unfinished apartment held entitled to lease from time of completion, and not from date of entry. Where tenant, because of expiration of lease requiring him to move from premises in which he had been living, moved into a new agreement in August an advance payment of For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes the apartment agreed to be leased to the, which reference has been made was finished appellee, which consisted of three bedrooms, and became available for use. Aside from dining room, living room, kitchen, two bath- consideration of the inconvenience resulting rooms and connecting halls, was untiled and from the unfinished condition of the hall and not in a condition to be used. The testi- stairway, we have the fact that the apartmony is in conflict as to certain other par- ment itself, upon the completion of which as ticulars in which the apartment is said to a whole the specified rent was to be chargehave been unfinished when the appellee en- able, was not fully prepared for use prior to tered into possession under pressure of the the time just mentioned. The bathroom was necessity of removing from the premises an important part of the premises for which he had previously occupied. It is clearly the substantial rent of $150 per month was proven that the bathroom referred to was to be paid. There were no exceptions in the not finished until the middle of December. provision that the apartment should be comThe hall, stairs, and heating system were pleted before the rent should begin to accrue. completed at earlier periods. The appellee's This was plainly a condition precedent, and apartment is on the third floor of the build- until it was performed the rent to which the ing, and does not appear from the record to agreement referred could not be exacted, 24 have been accessible otherwise than by the Cyc. 1160; 1 Tiffany, Land. & Ten.'1236; 2 stairway. It was not until the early part of Underhill, Land & Ten. (1909 Ed.) § 519; December that the hallway was completed. Clarke v. Spaulding, 20 N. H. 313; Baird v. For nearly a month after the appellee moved Evans, 20 Ill. 29; Epping v. Devanny, 28 Ga. into the building the tile flooring in the hall 422. The condition precedent as to the time and the concrete steps of the stairs were un- from which the rent should be payable was finished, a passage being afforded by the not qualified by any reference to the occutemporary use of boards. During the same pancy of the premises, and we do not think period the hall was lighted with lanterns; that a waiver of that provision could justly the electric fixtures not yet having been in- be implied from the appellee's entry under stalled. the circumstances described. The New Hampshire and Georgia cases above cited furnish support to this view. In Bonaparte v. Thayer, 95 Md. 548, 52 Atl. 496, where there was a refusal by a tenant to sign a lease because certain repairs said to have been promised were not made, but he had taken possession and paid some of the monthly installments of the rent agreed upon, it was held that, if there was such an agreement as the one alleged in regard to repairs, it was waived as a condition precedent to the beginning of the term. There was no stipulation in that case, as there is here, that the rent should not begin until the condition should be performed, but the question was whether the landlord's distraint for rent was illegal and actionable because the lease which the parties had acted under had not been formally executed. In none of the cases cited in the appellant's brief was there a condition precedent similar to the one by which the present question is controlled. Because of the conditions we have described the appellee objected to having the rent begin to accrue prior to December 15th, while the appellant claimed that it should run from October 25th, and their inability to agree upon that subject has prevented the execution of the lease which the appellant prepared and submitted and to which in other respects there was no objection. In this suit for specific performance brought by the appellee to require the execution of a lease to him by the appellant for a term beginning December 15, 1920, and ending September 30, 1921, it has been agreed by the parties that the issues between them shall be fully determined. To that end certain actions at law in relation to the rent and possession have been abandoned. After a hearing in the court below it was decided that the stipulated rent of $150 per month should be computed from December 15th, but that the appellee should pay the sum of $140 as a reasonable compensation for the use and occupation of the apartment for the period of about seven weeks prior to that date. A decree was passed giving effect to that conclusion, and the lessor has appealed. Pending the litigation the rent has been regularly paid except for the period in dispute. The question presented by the record is comparatively simple. The agreement was that the rent should "begin from date of completion of apartment," and it is proven that the apartment was not in fact completed until about the middle of December. It was not until then that the bathroom to It does not follow from the views we have stated that the appellee should not be liable for the fair value of his use and occupation of the unfinished apartment. The decree appealed from recognized and enforced such a liability. The sum allowed the appellant on that account appears to have been estimated with a reasonable regard to the proven conditions. In our opinion the decision rendered by the court below gave due consideration to the rights of both parties and administered full and practical justice in the case. Decree affirmed, with costs. (140 Md. 167) (116 A.) DORSEY v. DORSEY. (No. 83.) (Court of Appeals of Maryland. Jan. 12, 1922.) 1. Pleading 350 (3)-When case is submitted on pleadings, allegations of answer to be taken as true. Where case is submitted on petition and answer, both of which were verified, and no testimony is adduced, the allegations of the answer are to be taken as true. 2. Executors and administrators 20(10)Grant of administration discretionary with orphans' court, and not appealable. Under Code, art. 93, § 18, providing that, if intestate leaves a widow and children, the court may grant administration to the widow or one of the children, the power to grant the administration is entirely within the discretion of the orphans' court, and no appeal will lie from the exercise of such power. 3. Executors and administrators 20(2) Where intestacy is notorious or admitted, administrator may be appointed forthwith. Under Code, art. 93, § 16, providing that no administration shall be granted until 20 days after intestate's death, and at least 7 days after the application therefor, and in view of article 93, § 14, providing that, where a person dies intestate, letters of administration may be granted "forthwith," it was not error, where intestacy was admitted, to appoint administrator on the ninth day after intestate's death and on the day of application, as the limitation in section 16 applies only where the intestacy is not notorious or has not been proven. 4. Executors and administrators 20(4) Females of equal degree and nonresidents held not entitled to notice of application for administration. Where intestate left a widow, three daughters, and a son residing in the state, and a son residing out of the state, and the resident son applied for letters of administration, the widow, the daughters, and the nonresident son are not entitled to notice in view of Code, art. 93, §§ 23, 32, providing that males shall be preferred to females in equal degree, and no notice is required to be sent to nonresidents. 5. Executors and administrators 17(1) Administrator cannot be appointed without consent of person first entitled. Under Code, art. 93, § 15, the court cannot grant administration of an intestate's estate to two or more persons without the consent of the person first entitled. 6. Executors and administrators 18-Indebtedness to estate does not disquality one from acting as administrator. C. Dorsey, deceased. From order granting the appointment, George H. Dorsey, admintition dismissed. istrator, appeals. Order reversed, and pe Argued before BOYD, C. J., and BRISCOE, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. James Clark, of Ellicott City, for appellant. Edward M. Hammond, of Baltimore (Reuben D. Rogers, of Ellicott City, and Karr, Hammond & Darnall, of Baltimore, on the brief), for appellee. BOYD, C. J. This is an appeal from an order of the orphans' court of Howard county granting letters of administration to Mary C. Dorsey upon the estate of Howard C. Dorsey, to act in conjunction with George H. Dorsey, to whom letters of administration upon said estate had been-granted. The appellee filed a petition alleging that she is the widow of Howard C. Dorsey, who died intestate on the 3d of July, 1921, leaving surviving him the petitioner, his widow, and five children, three daughters and two sons; that she is one of those entitled to be appointed administrator, in the discretion of the court, and that both of her sons, William Clagett Dorsey and George H. Dorsey, are non-residents of the state; that George H. Dorsey surreptitiously and without consulting with or advising the petitioner, or William Clagett Dorsey, or, as far as she is advised, any of her children, applied on the 12th of July last for letters of administration on said estate, and they were granted to him on that day; that, although a resident of the state, she had no notice or intimation that he intended or contemplated applying for letters until a day or two after they were granted, when she was informed by one of her daughters that he had told her that the court had appointed him; that said George H. Dorsey is largely indebted to the estate, having through means unknown to her practically all of the assets properly belonging to the estate transferred to his individual name, and now holds said securities and assets, claiming them as his own; that neither the petitioner nor any of her children are willing to have him undertake the sole ad ministration of the estate, and she filed a request signed by the three daughters requesting her appointment as coadministrator with the said George H. Dorsey, the said William Clagett Dorsey acquiescing in the said request; that she is advised and so charges that the appointment of George H. Dorsey was improper and illegal in view of Appeal from Orphans' Court, Howard the fact that she had no notice of his intenCounty. That a person is indebted to the estate does not disqualify him from being appointed administrator nor render his appointment void. tion to apply for letters, and she, being a Petition by Mary C. Dorsey to be appoint-resident of the state and within a short dised coadministratrix of the estate of Howard tance of her husband's home, is within the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes class who are entitled to notice. She then prays that she may be granted letters of administration in conjunction with those heretofore granted to George H. Dorsey, and for further relief. An order was passed on the 19th of July, 1921, that George H. Dorsey show cause on or before the 25th of July, 1921, why the relief prayed for in the petition be not granted. On the latter day he filed an answer by which he admits that the petitioner is the widow of Howard C. Dorsey, who died intestate on the 3d of July, 1921, leaving surviving him the widow, the three daughters, and the two sons. He admits that William Clagett Dorsey is a nonresident, but denies that he is a nonresident, and, on the contrary, says he is an officer in the United States army, and when he entered the army he was a resident of Maryland, and, although temporarily stationed at Denver, Colo., he still retains his legal residence in Maryland. He admits that letters were granted to him on the 12th of July, 1921, and he has qualified and undertaken to administer the estate, but he denies that he made application surreptitiously, as alleged in said petition, and avers that before making application he consulted with two of his sisters and was advised by them that they and their mother were perfectly willing for him to adminisHe denies that Mary C. Dorsey was entitled to notice, and avers that the court has full power and authority to grant letters without notice to any one. He denies that he is indebted to the estate in any manner, shape, or form; alleges that Mary C. Dorsey had been separated from her husband and had not lived with him for several years, and since her separation she had made her home with her son, William Clagett Dorsey, and had spent the greater part of the last several years in Florida, where William Clagett Dorsey is in business and resides; that his father had often in his lifetime expressed the request that respondent administer on his estate. He denies that his appointment was improper or illegal in any respect, and avers that the court is wholly without jurisdiction and authority to appoint the said Mary C. Dorsey as coadministrator. [1] The case was submitted to the court on the petition and the answer, both of which were under oath, and no testimony was tak The allegations of the answer are taken to be true (Daugherty v. Daugherty, 82 Md. 229, 33 Atl. 541), but, regardless of that, there would seem to be no foundation for such an order as the one appealed from under the circumstances shown by the petition and answer. court shall be granted either to the surviving husband or widow as the case may be, or child, or one of the children." It has been decided by this court that"The selection of the one of the class to whom, to the exclusion of the others, letters of administration shall issue, is committed by and from its order in that respect no appeal the law to the discretion of the orphans' court, will lie." Kailer v. Kailer, 92 Md. 147, 149, 48 Atl. 712; Bowie v. Bowie, 73 Md. 235, 238, 20 Atl. 916; Cook v. Carr, 19 Md. 4. [3] By section 16 of article 93 it is provided that "It shall be incumbent on the person applying for administration to prove such dying intestate to the satisfaction of the court, unless the same be notorious. * * No such administration shall be granted until at least twenty days after the death of the supposed intestate, and at least seven days after application therefor." The last sentence of that section is only applicable when the intestacy is not notorious, or has not been proven to the satisfaction of the orphans' court. Williams v. Addison, 93 Md. 41, 44, 48 Atl. 458. It was said by Chief Judge McSherry in that case that section 14 of article 93 (where it is said that, whenever any person shall die intestate leaving in this state personal property, letters of administration may forthwith be granted) and section 16 were not in conflict under that construction of section 16. See, also, Jones, Adm'r, v. Harbaugh, 93 Md. 269, 273, 48 Atl. 827. In this case we not only have the presumption that the orphans' court was satisfied that the decedent died intestate, but it is so alleged in the petition and admitted in the answer. There can therefore be no difficulty on account of the time within which letters were granted. [4] In reference to notice it may be said that by section 23 of article 93 "males shall be preferred to females in equal degree or kin," and therefore, as between the appellant and his sisters, no notice was required, and, as the other brother was out of the state, no notice to him was necessary. Section 32 of article 93. So far as the widow is concerned, it is sufficient to say that, even if she was entitled to notice, she knew that letters had been granted in ample time to appeal, or she could have applied to the court to revoke the appointment, if she had any ground for such action, but she did neither, and filed this petition asking to be appointed coadministrator, in effect thereby waiving any absence of notice she may have been entitled to. [5, 6] Section 15 of article 93 provides [2] Section 18 of article 93 provides that-that "If the intestate leave a surviving husband "Administration may be granted to two or or widow, as the case may be, and a child, or more persons, with the consent of the person (116 A.) Id. In suit for breach of warranty of goods, where plaintiff presented no reason excusing his neglect to inspect the goods to determine received and paid for, refusal of trial court to their quality within two months after they were direct verdict for defendant was error. When a class of persons is first entitled, | 7. Sales 445 (6)-Refusal to direct verdict the one selected by the court as administra- for defendant held error. tor is the person first entitled under this section. Kailer v. Kailer, 92 Md. 147, 150, 48 Atl. 712. Even if George H. Dorsey was indebted to the estate, that did not disqualify him or render his appointment void. As there is nothing in this case to show that Mrs. Dorsey was appointed coadministrator with the consent of George H. Dorsey, the person first entitled, but, on the contrary, it is shown that he has not given his consent, the order of the orphans' court of the 26th of July, 1921, must be reversed. Order reversed, and petition dismissed, the appellee to pay the costs, above and below. (273 Pa. 303) ALBUS V. TOOMEY. (Supreme Court of Pennsylvania. 1922.) Appeal from Court of Common Pleas, Philadelphia County; William H. Shoemaker, Judge. Action by Nathan W. Albus against Cornelius P. Toomey. Judgment for plaintiff, defendant appeals. Reversed, with directions. Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, KEPHART, and SCHAFFER, JJ. Alfred T. Steinmetz and George Wentworth Carr, both of Philadelphia, for appel Feb. 13, lant. 1. Customs and usages 3-Requisites stated. Trade customs and usages are absolute and final, unless set aside, by agreement or statute. 3. Customs and usages 21-Where uncertain, their nonexistence should be determined by court. Whether the usage is uniform, notorious, certain, and continuous is ordinarily a question for the jury; but where it appears that the custom or usage has been lately established, with but few instances of its recognition, or lacks other qualities to make it enforceable, the court should determine its nonexistence, without submitting the question to the jury. 4. Customs and usages 5 Definition of "particular customs." "Particular customs" are such as prevail in some county, city, town, parish, or place. [Ed. Note. For other definitions, see Words and Phrases, Particular Customs.] 5. Customs and usages 20 Methods of showing knowledge of customs stated. Knowledge of a local or particular custom may be shown by receipt of actual information, or from evidence of circumstances on which an implied knowledge may be found; but, where a person lives outside the place affected by a custom, actual knowledge must be shown. 6. Customs and usages19(3) Evidence held not sufficient to establish custom. Evidence held not sufficient to establish a custom of waiting until time of manufacturing goods before examining them. David S. Malis, of Philadelphia, for appellee. KEPHART, J. Defendant, a New York jobber, purchased merchandise from a mill and sold it to plaintiff, a Philadelphia manufacturer of ladies' dresses. Two months after the goods were received and paid for, plaintiff, through his agents, inspected them, and, finding they were deficient in quality, complained to defendant the goods were not as warranted. No remuneration having been received, plaintiff instituted this suit to recover for breach of the warranty; on verdict and judgment in his favor, defendant appeals. [1, 2] Plaintiff in the court below successfully relied on a custom or trade usage as excusing his neglect to have the goods examined within a reasonable length of time. custom so long persisted in as to be known and practiced by a community is the law of the particular business in which it exists." Adams v. Pittsburgh Ins. Co., 95 Pa. 348, 356, (40 Am. Rep. 662). It is essential, before a usage, combining numerous repetitions of acts extending over a considerable period of time, may be denominated a custom, that it be certain, continuous, uniform, and notorious. Nor does the operation of an established usage or custom depend upon the gratuitous assent of any individual. It must be a rule, peacefully acquiesced in, to govern the conduct of persons in relation to a given matter, so certain and uniform as to be, not only valid and enforceable in a court of law, but the parties must be presumed to have known it and acted in reference to it. Corcoran v. Chess, 131 Pa. 356, 359, 18 Atl. 876; Bubb v. Parker & Edwards Oil Co., 252 Pa. 26, 31, 97 Atl. 114. If the consent or permission of one of the parties is necessary before the custom or usage can be effective, it is not a rule of conduct, binding alike on both parties, regard For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |