tention of the plaintiffs. They had a right to suggest to their mother that she ought to make a will and remember them. She knew as well as either of them what her husband had bequeathed to Mrs. Kennedy and Edgar Dorsey, and, if we are to give any weight to uncontradicted evidence in the record, she was of opinion that Mrs. Kennedy already had too much money. But it was contended that the statement made by Wm. A. Dickey to his mother, to the effect that he and his brother had helped their father to make his money, was a misrepresentation, and in fact a false statement made to the testatrix for the purpose of unduly influencing her mind. It may be said, however, that, if the statement thus made was intended to be the statement of a fact, she was as well acquainted with the history of the firm as her sons were. She knew her sons had been working with their father since they were boys, and that, while they made money for themselves, they helped him to make his fortune. She knew also that for a number of years before his death they were intrusted with the active management of the manufacturing branch of the business, while he and Mr. Dorsey were conducting the banking business in Baltimore. The statement was, therefore, true, and it can hardly be said that it was improper for the son, under these circumstances, to express the opinion that he and his brother were entitled to some consideration. When, however, we examine the testimony of Mr. Randolph Barton, Sr., who took the instructions and directions of the testatrix for the preparation of her will, it seems to us all doubt disappears. We cannot here reproduce that testimony in full. He says that after some general conversation Mrs. Dickey told him she wanted to make her will; that he got a pencil and paper, and said to her: "Now, Mrs. Dickey, what is your desire?' She then gave me her instructions. I wrote them down in lead pencil, and repeated them to her, read them again to her, ascertained that they were correct, just as she desired, and after some more general conversation I left." Although both of her sons were present, Mr. Barton says that not a word came from them as to the contents of the will. To use his own language, he said: "She gave them [the instructions] to me. I am as clear as I can be about anything that a man has to recollect that Mrs. Dickey's instructions were absoIntely her own. They were positive and clear, and my recollection is that not a word was said by any one else." Again he says in reference to her instructions: "They were entirely unaided; no suggestions from any one; but they were purely her voluntary and clear-cut instructions." The only other direct testimony relied on is that of the two witnesses who had a conversation with William A. Dickey on the street in Baltimore in December, 1899, to the effect as one of them testified that he said his mother could be

* * #

persuaded to make no will, and the result would be that the Dorseys and Kennedys would come in equally with him and his brother. The other witness testified that what Mr. Dickey said on the occasion referred to was that his mother would not make a will. Assuming this testimony to be true, as we must, we are unable to understand how it tends to prove that when, contrary to the statement or expression of opinion, the will was made some six months after the time the conversation was had, William A. Dickey did or could have unduly persuaded or dominated his mother's will. He did not say that he could thus persuade her. The most natural and reasonable inference to be drawn from what it is alleged he said is that he was apprehensive that some one else might induce her to pursue a course which would be injurious to him and his brother, or that she had decided to do so.

Our conclusion is that there is nothing in any of this direct testimony, either standing alone, or taken in connection with any or all of the circumstances of the case, which furnishes what the law has declared to be legally sufficient testimony. Hiss v. Weik, supra; Somers v. McCready, supra. In the case last cited it is said that, "in the inquiry as to the legal sufficiency of evidence to support an allegation of undue influence, it is not sufficient to find that such evidence shows there was influence which affected the testator's disposition of his property; but, in order to render such evidence legally sufficient, it must show that the influence claimed to be undue dominated his will at the time he was making such disposition of his property, took away his free agency, and prevented the exercise of judgment and choice by him. There may have been advice, suggestion, or importunity going to affect his purpose and his act in the disposition he chooses to make; yet, if he had testamentary capacity, and was free and unconstrained in his volition, at the time of making his will, the influence that may have inspired it or any of its provisions will not be that influence which the law denounces as undue. The inquiry to be made in any given case goes to the effect of the influence in bringing about the testamentary act, and how the effect was produced, and includes, first, the existence of the influence; second, the opportunity for it to be exerted; and, third, its actual exercise or operation to the extent and in such a way as to make the act in question the product of the influence, uncontrolled by and irrespective of any volition on the part of the testator." There is therefore no legally sufficient evidence to show either incapacity on the part of the testatrix, or undue influence exercised over her by her sons prior to or at the time she gave instructions for the preparation of her will. Nor is there anything to indicate there was a change in this situation thereafter.

Unless, therefore, the will itself affords ev

But it

idence legally sufficient to show that it was the result of undue influence, the ruling of the learned judge of the Baltimore city court was correct. This question, we think, may be briefly disposed of. Of course, it is conceded that Mrs. Dickey had the right-being capable and free from undue influenceto give any portion or all of her estate either to her sons or to her grandchildren. is said the fact that she gave only small pecuniary legacies to the latter, and the residue to the former, is, under the circumstances of this case, such evidence of undue influence as should have gone to the jury. But it seems to us, when it is remembered that plaintiffs were already in the enjoyment of what the testatrix must have considered and did consider ample fortunes, and that the sons, who represented the family in the business community, would continue the business in which her husband made his fortune and his reputation as a leading man, it is not at all remarkable that she made the disposition of her property which is here complained of by the plaintiffs. If it be conceded that her husband followed the rule of equality in the division of his property among his children and grandchildren, she certainly was under no obligations to do so. In conclusion, we quote and adopt the following language of the Supreme Court of the United States in the case of Beyer v. Le Fevre, 186 U. S. 125, 22 Sup. Ct. 770, 46 L. Ed. 1080: "In such actions as this," say the court, "the testator cannot be heard, and very trifling matters are often pressed upon the attention of the court or jury as evidence of want of mental capacity, or of the existence of undue influence. Whatever rule may obtain elsewhere, we wish it distinctly understood to be the rule of the federal courts that the will of a person found to be possessed of sound mind and memory is not to be set aside on evidence tending to show only a possibility or suspicion of undue influence. The expressed intentions of the testator should not be thwarted without clear reason."

The rulings appealed from must be affirmed.

Rulings affirmed.

(100 Md. 272)

ROWLAND v. DOLBY & STATTON. (Court of Appeals of Maryland. Jan. 12, 1905.) FACTORS DELIVERY OF GOODS ALREADY SOLDLIEN-POSSESSION.

1. The factor's act (Code Pub. Gen. Laws, art. 2, § 1) provides that any person intrusted, for the purpose of consignment or sale, with any goods, and who shall have shipped or consigned the same in his own name, and any person in whose name any goods shall be shipped or consigned by any other person, shall be taken to be the true owner thereof, so far as to entitle the consignee to a lien thereon for any money, etc., advanced for the use of the person in whose name such goods, etc., shall be shipped or consigned. Held, that neither under the stat

ute, nor at common law, may one to whom goods are delivered merely to deliver to a purchaser have a factor's lien, though the purchaser refuses to accept them.

2. A factor who has deprived himself of possession by placing the goods in a warehouse and delivering the receipt to his principal has no lien.

Appeal from Circuit Court of Baltimore City; George M. Sharp, Judge.

Action by James L. Rowland against Dolby & Statton. From a judgment sustaining a demurrer to the bill, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, and SCHMUCKER, JJ.

Leigh Bonsal, for appellant. Robert P. Graham, for appellees.

FOWLER, J. James L. Rowland is a broker dealing in canned goods. He filed a bill against the firm of Dolby & Statton, in which he alleges that in October, 1902, he sold for them a large quantity of canned tomatoes, among which was a sale on the 30th of that month of 3,000 cases, for $5,400, to the Sciota Canning Company; that on these sales there is due him the usual brokerage, of 2 per cent., or $198, and the additional sum of $131.30, which he advanced to pay freight and other items, making a total indebtedness of $329.30; that he stored with the Terminal Warehouse Company 850 cases, being part of the shipment which had been sold to the Sciota Canning Company, and which that company had refused to take, on account of the great and usual delay in delivery; that for the 850 cases so stored he took a warehouse receipt in his own name, and subsequently, for the purpose of getting a settlement, delivered it unindorsed to Dolby & Statton; that they have refused to pay the amount due him, and that, as neither he nor they can get possession of the goods (he because he no longer has possession of the warehouse receipt, and they because the receipt is not indorsed by him), he asks the court to appoint a trustee to sell the goods, and that the proceeds may be applied, after the payment of the charges of the warehouse company and the costs of this suit, to the payment of the debt due him, and the balance, if any, to Dolby & Statton. There was also an amended bill filed, in which it is alleged (paragraph 3) that on December 18th the defendants shipped to him 850 cases of tomatoes, which had been intrusted to him by said defendants. But how or why or for what purpose these goods were so intrusted to him by the defendants is not alleged in the amended bill. If, however, we read the latter in connection with and as part of the original bill Wagoner v. Wagoner, it will appear that the goods in controversy were intrusted to the plaintiff to be delivered by him to the Sciota Canning Company, the purchaser. The defendants demurred to both bills, and, the court below having sus

tained the demurrers, the plaintiff has appealed.

The single question presented is whether the plaintiff is entitled to a factor's lien. This question leads, in the first place, to the inquiry whether the plaintiff, under the facts of this case, as alleged in the bill and admitted by the demurrer, is a factor, within the meaning of that term at common law, or under our statute relating to agents and factors (article 2 of the Code of Public General Laws). A factor is defined to be "a commercial agent to whom the possession of personal property is intrusted by or for the owner to be sold, for a compensation, in pursuance of the agent's usual trade or business." 12 Am. & Eng. Encyl. 628. And it is a well-settled rule of the common law that a factor has a lien upon goods so consigned to him, while in his possession, for all commissions, advances, and expenditures properly incurred in the relation of principal and factor. Id. p. 676. And our factor's act (Code Pub. Gen. Laws, art. 2, § 1) provides that if goods, etc., are intrusted to any person for the purpose of consignment or sale, any one who shall have shipped or consigned the same in his own name, and any person in whose name any goods shall be shipped or consigned by any other person, shall be taken to be the true owner thereof, so far as to entitle the consignee to a lien thereon for any money, etc., advanced for the use of the person in whose name such goods, etc., shall be shipped or consigned in the same manner as if such person were the true owner. But those provisions have no application to the facts of this case, for here the demurrer admits that the sole purpose for which the goods were placed in the plaintiff's possession was to deliver them to the purchaser. Nor, for the same reason, can the plaintiff be brought within the definition of a factor at common law, for, as we have seen, such a factor is defined to be an agent to whom the possession of goods is intrusted to be sold for a compensation. But again, whatever the right of factors may be at common law, or otherwise, in regard to a lien for commissions and advances, all the authorities agree that such right is based primarily upon possession. 12 Am. & Eng. Encyl. p. 680, note 3. In the case of Ruhl & Son v. Corner & Co., 63 Md. 185, it is said (quoting from the opinion of Judge Washington in the case of Walter v. Ross, 2 Wash. C. C. 286, Fed. Cas. No. 17,122) that, to perfect a factor's lien, one must acquire and retain an actual possession, and that constructive possession will not do. It is not necessary in this case to hold that the extreme rule of actual possession should in all cases be applied, to entitle a factor to a lien, for it appears both in the original and amended bills that the plaintiff had not only voluntarily deprived himself of such possession by placing the goods in the storage warehouse, but he had delivered to the defendants the ware

house receipt; thus depriving himself of both actual and constructive possession. Altogether, aside from these considerations, however, it is apparent from the allegations of the bill that the goods were put in the possession of the plaintiff, not as a factor for sale, but after they had been sold, for the purpose of delivering them to the purchaser, the Sciota Canning Company. If this be so, it cannot be contended that the law would imply a right of lien in the plaintiff, which would enable him to hold the goods, or sell them to repay himself out of the proceeds, in defiance of the understanding that he was to deliver them to the Sciota Company. The fact that the purchaser refused to accept them cannot alter the condition on which they were put in the plaintiff's possession.

It was contended by the plaintiff that, whatever doubt there may have been as to the relation of the parties prior to the 18th December, there can be none that after that time their relation was that of factor and principal, because on that date the goods were intrusted to the plaintiff by the defendants. But how intrusted? Certainly not for sale, for the bill alleges that they were sent to him to be by him delivered to the Sciota Company, who had purchased them in October.

It follows that there was no error in sustaining the demurrer, and the judgment appealed from will be affirmed. Judgment affirmed, with costs.

1. One who, on arriving at the intersection of streets, looks, but, seeing no street car, proceeds to cross the track, but, before crossing, looks again, and, though seeing a car coming, hurries and tries unsuccessfully to cross before it arrives, is guilty of contributory negligence. 2. Any error in not submitting the question of negligence is harmless, contributory negligence being conclusively shown.

3. A motorman, seeing one driving a team toward the street car track, a short distance from an approaching car, and just before driving on the track, has a right to assume she will stop in a place of safety.

Appeal from Court of Common Pleas; Henry Stockbridge, Judge.

Action by Caroline Heying against the United Railways & Electric Company of Baltimore. Judgment for defendant. Plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, BOYD, PEARCE, and SCHMUCKER, JJ.

3. See Street Railroads, vol. 44, Cent. Dig. § 192.

Myer Rosenbush, for appellant. Arthur D. Foster and Geo. Dobbin Penniman, for appellee.

FOWLER, J. Caroline Heying brought this suit against the United Railways & Electric Company of Baltimore City to recover damages for serious bodily injury which she suffered while driving her milk wagon on one of the streets of Baltimore City. The facts as they appear in the record are: That between 5:30 and 6 o'clock on the morning of December 13, 1902, the plaintiff was driving up Columbia avenue to Cross street, and up Cross street to Sharp street. That, as she came to the corner of Sharp and Cross streets, she looked up both sides, but she didn't see the car coming, and she hurried up as quick as she could, and the car struck the rear end of the wagon. That when she looked the second time the car was a good ways from her. She couldn't tell how far, but it was closer to Hamburg street than to Cross street. That she hurried over as quickly as she could. "She tried her best, but she couldn't get over. The wagon was smashed completely to pieces, and she was knocked senseless." On cross-examination the plaintiff testified that when she arrived at the corner of Sharp and Cross streets she looked in both directions, up and down Sharp street, on which the cars ran, and, seeing no car, she proceeded to cross the track. But she testified that before crossing she looked again, and, in spite of the fact that she saw the car coming, she hurried and tried to get across before the car could get to the crossing.

In our opinion, this is a clear case of contributory negligence. It is apparent from all the evidence that the car must have been a very short distance from the corner when the plaintiff, with a reckless disregard of her safety, or, perhaps more likely, a want of appreciation of her danger, drove directly on the track in front of the car. Nor is there any evidence to show that after the motorman saw her in a place of danger, or could have so seen her by the exercise of anyeven the greatest-degree of care, he could have stopped the car in time to avoid the collision.

As has often been said, the defense of contributory negligence admits some degree of negligence on the part of the defendant. But in this case the defendant does not appear to

A

have been at fault, and the court so instructed the jury, by granting defendant's first prayer, by which they were told that there was no legally sufficient evidence of negligence on the part of the defendant. But if we should assume there was some such evidence which ought to have gone to the jury, still, if the plaintiff was guilty of contribu tory negligence, the question of negligence vel non on the part of the defendant becomes immaterial, for, if there was no negligence on its part, there can be no recovery, and, if there was, the same result would follow, because of the plaintiff's contributory negligence. But as we have seen, her own testimony was sufficient to justify a verdict and judgment for the defendant. She was asked this question, "You looked, and you saw the car coming, and, instead of stopping and waiting, you hurried and drove right on the track?" And she answered, "Yes, sir." We do not deem it necessary, to apply to the facts of this case the well-settled principles so frequently announced by us. It is only one more case where the injury was caused by an error of judgment. The plaintiff can hardly be supposed to have been so reckless or to have had so little judgment as to have attempted to cross when the car was so close to the crossing as it proved in fact to be. As was said in Thomas v. Pass. Ry. Co., 132 Pa. 505, 19 Atl. 286, "She would seem to have taken the chances' and assumed the risk," or, as we said in Meidling's Case, 97 Md. 77, 54 Atl. 612. If the calculation the plaintiff made in regard to the distance the car was from the crossing had been correct, she doubtless would not have been injured, but she was in error, and she ought to have known she was likely to make a mistake in this respect, because the accident happened on a dark, foggy morning in the middle of December. But upon the whole case it would appear as though the plaintiff was running a race with the defendant's car, and it was her misfortune that she and the car arrived at the crossing at the same time. In this connection, it must not be forgotten that, assuming (and there is no proof of it) that the motorman saw the plaintiff just before she drove on the track, he had a right to assume she would stop in a place of safety.

Being of opinion the case was properly withdrawn from the jury, the judgment will be affirmed.

Judgment affirmed, with costs.

(100 Md. 284)

READ V. REYNOLDS et al. (Court of Appeals of Maryland. Jan. 19, 1905.) TRUSTS-PURCHASE BY TRUSTEE-MORTGAGESSALE-PURCHASE BY MORTGAGEE-VALIDITY-EQUITY-ANSWER AS PROOF.

1. Where the plaintiff sets down an equity cause for hearing on the bill and answer, the truth of averments of the answer in avoidance of, as well as those responsive to, the allegations of the bill, is admitted.

2. Land inherited by a debtor after the execution of a deed of all of his property in trust for the payment of his debts does not thereby become a part of the trust estate, though incumbered by a mortgage as security for some of his debts; and hence a purchase thereof in good faith by one of the trustees, as assignee of the mortgage, at a sale under power conferred by the mortgage, is valid, especially where the trust estate could not have been increased or diminished by the price obtained at the sale.

Appeal from Circuit Court, Allegany County, in Equity; A. Hunter Boyd, Chief Judge.

Suit by William J. Read against De Warren H. Reynolds and another to set aside a sale of land under a mortgage, and a subsequent conveyance thereof. From a decree for defendants, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, PAGE, PEARCE, and SCHMUCKER, JJ.

William J. Read and John E. Semmes, for appellant. Benjamin A. Richmond, for appellees.

PEARCE, J. This is an appeal from a decree of the circuit court of Allegany county, as a court of equity, passed in a cause submitted upon bill, answer, and exhibits. The case presented is a novel one, and, as such, has received careful examination, since we recognize the fact that while the science of law, upon which the administration of justice depends, is more rigidly guided and governed by precedent than any other science, it yet should and does respond to the demand for the application of correct legal principles to the exigencies of new situations.

The bill in this case was filed by William J. Read, and sets forth that on January 22, 1896, his brother, Robert C. Read, with their mother, Sarah H. Read, made a mortgage to George Glick to secure a debt of $6,000, due three years after date, contracted by Robert C. Read for the exclusive benefit of William J. Read, who received the $6,000 for his own use, and promised the said Robert C. Read to pay the said mortgage when due; that Sarah H. Read owned the life estate, and Robert C. Read owned the remainder, in the said mortgaged premises, and that Sarah H. Read has since died; that on April 7, 1837, William J. Read and wife, together with Robert C. Read, made a mortgage to Warren O. White upon all the real estate of William J. Read, and upon the real estate of Robert C. Read previously mortgaged to Glick, to secure a debt of $8,000

due from William J. Read to said White; that on November 5, 1897, William J. Read and wife conveyed all their property embraced in the White mortgage to De Warren H. Reynolds, Robert R. Henderson, and James W. Thomas, as trustees, with power to sell the same for the payment of all the debts of William J. Read, which included the Glick and White mortgages; that these trustees accepted the trust, sold all said property, and have received all the purchase money, and have distributed the same under audits duly ratified by the court, but that, instead of paying all the debts of William J. Read, as he confidently expected, there is only $2,532.71 to be applied to the White mortgage; that on August 1, 1897, the White mortgage was assigned to De Warren H. Reynolds, and on January 21, 1899, the Glick mortgage was also assigned to him, and that said Reynolds was a practicing lawyer and the attorney of William J. Read and Robert C. Read during the whole period covered by these transactions, and procured, as their attorney, the $8,000 loan from said White, and knew that the $6,000 loan from Glick was for the exclusive use of William J. Read, and that he had promised to pay the same; that, after the assignment of the Glick mortgage, and while acting as the attorney for William J. Read, as one of said trustees, and as agent for Robert C. Read, the said Reynolds, acting under a power of sale contained in the Glick mortgage, advertised the mortgaged premises for sale, and himself became the purchaser thereof for the sum of $15,150; that the sale has since been ratified and the property conveyed to Reynolds by Benjamin A. Richmond, the trustee appointed for that purpose, and that Reynolds has since sold and conveyed the same to the Interstate Trust & Guaranty Company for $16,500; that said company was incorporated by the Legislature of Maryland, by chapter 181 of the Acts of Assembly of 1900, and that, before and at the execution of said last-mentioned conveyance, said Reynolds was a stockholder, director, and president of said company, and was personally cognizant of all the facts alleged in the bill, and that the company therefore had notice thereof; that, in the audit of the proceeds of sale under the Glick mortgage, $1,212 was allowed Reynolds as commissions, and, after allowance of the costs and the amount of the Glick mortgage, there remained $5,901, which should be distributed as a payment on the White mortgage, but which has never been so credited, and that, even if so credited, there would still be a considerable balance for which the plaintiff would be liable to Reynolds as assignee; that said sale was a forced sale for cash, when real estate values in Cumberland were much depressed, and that the sale was for a greatly inadequate price, the property being at that time worth at least $20,000; that some time before the sale Reynolds took possession of the