(112 A.)

"Baltimore, October 11, 1917. [plaintiff for the sum of $840, being the amount ($750) sued for in the ninth count of the declaration, with two years' interest thereon. The plaintiff being aggrieved at the judgment of the court, because of its failure to recover the item of $2,000 sued for in the eighth count of the declaration, has appealed to this court.

"Mr. Joseph Berman, President of the Druid Realty Company: You are hereby authorized and directed to pay unto Crane Company the sum of two thousand dollars ($2,000.00) for and on account of plumbing material furnished to the three apartments now in the course of construction on the Lake Drive and Linden Avenue, and the said sum of two thousand dollars ($2,000.00) to be charged and deducted from the contract price for said work, had and entered into with your company and the undersigned under date of the 14th day of March, 1917. Lowe & Myers, "Ed Lowe.

It is stated in

The main question in this case is the proper construction and effect of the language used in the acceptance of the order; and this question is involved, not only in the court's rulings upon the granted prayers, but also in its rulings on some of the rejected prayers of the plaintiff, as well as in a number of its rulings upon the evidence. the acceptance of the order that the money mentioned in it was "to be paid within 30 days from the date of the final completion of said work in accordance with the provisions of the contract mentioned in the above order." The plaintiff contends that the effect "Provided and upon condition that Crane of the above-quoted language is not to creCompany will continue to furnish to Lowe &ate a condition, but "is merely to fix a point Myers all of the plumbing material necessary to complete said work.

"I, Joseph Berman, president, for and on behalf of the Druid Realty Company, do hereby accept of the above order, the same to be paid within 30 days from the date of the final completion of said work in accordance with the provisions of the contract mentioned in the above order, and will also pay $750.00 when 13 sets of bathroom fixtures with 6 sinks shall have been installed.

"The Druid Realty Company,

"By Joseph Berman, President. "Witness: B. Rosenheim."

After the execution of the aforesaid order and acceptance, the appellant delivered more materials and supplies to Lowe & Myers, who continued said work, under said contract with the appellee, until, as they say, it was practically finished. The appellee, however, claimed that Lowe & Myers had not only failed to complete the work under the contract, but that part of the work done by them was defectively done, in consequence of which the appellee had not only to complete such unfinished work, but had also to correct the defective work. While things were in this condition, the appellee was called upon to pay the amounts mentioned in the order, and upon its refusal to pay the same the suit in this case was brought upon said order and acceptance.

The declaration contains six of the common counts, and three special counts. The eighth count is upon the acceptance as far as it affected the $2,000 and the ninth count is upon the agreement to pay the $750, both of which amounts are mentioned in the order. The case was tried before the judge, sitting as a jury, and at the conclusion of the evidence he refused all the instructions asked for, except the plaintiff's third prayer and the defendant's first prayer, which the reporter is asked to insert in his report of this case.

The court's ruling upon the prayers, and its action in overruling the plaintiff's special exceptions to the defendant's first prayer, form the fortieth bill of exceptions. The other 39 exceptions are to the rulings of the court upon the admission or rejection of evidence. The court rendered a verdict for the

of time for payment," which is 30 days from the date of the final completion of the work, without regard to the provisions of the contract as to the quality or the character of the materials furnished, or as to how, or in what manner the work was to be done. The defendant, on the other hand, contends that the effect of the language is to create a condition upon which the money was to be paid, and that condition was "the final completion of said work in accordance with the provisions of the contract," meaning thereby, that the appellant was not to pay the said sum of $2,000 mentioned in the order until the work was finally completed according to the terms and conditions of the contract as to the character of the supplies and fixtures and as to the manner and way in which the work was to be done.

[1, 2] An acceptance of an order is conditional by the common law, as well as by the Negotiable Instrument Act, when the payment by the acceptor is dependent upon the fulfillment of the conditions therein stated. Article 13, § 160. As stated by Judge Story:

"Acceptance is conditional or qualifying when it contains any qualifications, limitations, or conditions different from what is expressed in the face of the bill, or from what the law implies upon a general acceptance." Story on Bills, § 239; Eaton & Gilbert on Commercial Paper, § 153.

When, however, the acceptance is to be conditional only, the condition should be fully expressed by the party proposing the same.

"He is not permitted to use general terms, and then exempt himself from liability by relying upon particular facts, which may have some connection with the condition expressed, for the reason that the particular fact is of itself susceptible of being made a distinct condition."

prayer, inasmuch as it ignores the alleged evidence as to certain payments upon the contract price, aggregating $1,700, made by the tion of the acceptance. The appellant claimacceptor to Lowe & Myers, after the execued that had such payments not been made there would still have been a balance in the hands of the acceptor, after deducting therefrom the amount stated to have been paid in completing and correcting the defective work of Lowe & Myers.

ord in connection with the objection to the We have very carefully examined the recprayer, and have found no evidence, legally sufficient to have been considered by the court, sitting as a jury, in support of such

payments. There are statements of witnesses of rather indefinite character as to cer

tain moneys paid by the acceptor to Lowe & Myers after the execution of the acceptance, ments that these payments were upon extras but it would seem to appear from such statedone by them and not upon the contract price from which the $2,000 was to be deducted under the order given. At least the evidence in respect thereto was not legally sufficient to be considered by the court as tending to show that such payments were made upon the contract price.

(112 A.)

the acceptor as to the character of the work when he was finally asked what it would cost done and materials furnished. This evidence, too, was admissible under the view we take of the case as to the construction of the acceptance of the order.

[9, 10] The court, we think, properly ruled on the eighth, ninth, thirteenth, and twentysecond exceptions, refusing to admit evidence as to when the apartments were occupied, without regard to whether at such time the work was completed in accordance with the provisions of the contract. Nor do we find any error in the court's rulings on the tenth and eleventh and twelfth exceptions, where it refused to admit evidence as to the capitalization of the Druid Realty Company, and as to who were its officers, and as to who were the stockholders of the Lyon Realty Company. This evidence, we think, had no bearing upon the issues, and was properly rejected.

to-day. This question, it seems, was not objected to; if so, no exception was taken to the ruling of the court in admitting it, as appears from the record. Nor do we see any error in the court's ruling on the thirty-ninth exception, where the motion was made to strike out the testimony of Melville, at the conclusion of his evidence. And the same may be said of the court's ruling on the thirty-fourth exception.

Therefore, as we have found no error in the rulings of the court, the judgment appealed from will be affirmed. Judgment affirmed, with costs.

CENTRAL CONST. CORPORATION et al. v. HARRISON. (No. 30.)

1920.)

[11, 12] The seventeenth, eighteenth, nine- (Court of Appeals of Maryland. teenth, twentieth, and twenty-first were all taken to questions asked the witness Russell, whether or not certain portions of the work done under the contract of March 14, 1917, by Lowe & Myers, was done by them in accordance with the requirements and specifications. The court's action in permitting him to testify to the same, we think, was correct, in view of his connection with the work and his knowledge of it. Nor do we see any reversible error, if any, in the court's ruling on the twenty-third exception.

Dec. 2,

1. Master and servant 375(2) Injury while boarding train bound for working place held one "arising out of and in the course of employment" within Compensation Act. ployees free transportation to and from work Where employer agreed to furnish emand arranged with railroad for such transportation, and where employees were at first transported by regular train, but later, because of increasing numbers, by special work trains, and where by subsequent agreement the payment for transportation of such employees was made direct to the railroad by the United being done, an employee who was directed to States government for which the work was board wrong work train, and, on discovery of mistake, was injured while boarding the following regular train which would carry him to his work, was injured by an accident which arose out of and in the course of his employ

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Course of Employment.]

2. Master and servant

417(5)—Compensa

tion Act contemplates submission of questions of ultimate facts.

[13-16] The twenty-fourth, thirty-first, and thirty-second exceptions are to the rulings of the court in admitting evidence of Wigley and Kearsey as to conditions found by them as the result of an inspection made some time after the work was done. This evidence, we think, was admissible in view of the character of the defects found, and in view of that which was done in the presence of the wit-ment within the Workmen's Compensation Act. ness in order to find them, indicating that such defects existed at the time when the work was done. Nor do we find any reversible error in the court's rulings on the twenty-fifth and thirtieth exceptions, in view of the provisions of the contract by which the work was done. The evidence admitted on the twenty-sixth, twenty-seventh, twentyeighth, and twenty-ninth exceptions, we think, is admissible, taken in connection with the other testimony offered in the case. the thirty-third exception, the witness Melville was asked, "What, in your opinion, would it have cost the Druid Realty Company, in the spring of 1918, to have remedied the defects noted in these lists?" offered in evidence. There was an objection made to this question, and the objection was overruled, and he was permitted to answer. In his answer he said, "Well, I was figuring to-day, what it would cost, not in 1918," and then a number of questions and answers followed,

In

In proceedings under Workmen's Compensation Act, involving the issue of whether an accident which occurred while employee was boarding train on way to work arose out of and in the course of the employment, court's refusal to submit proposed questions of fact terms of contract between employer and railas to nature of accident, character of train, road, and as to whether employer furnished employee free transportation, held proper under Code, art. 101, § 56, providing for submission of questions of fact; such statute having reference only to ultimate facts. 3. Master and servant 417 (5)—Refusal to submit issue of fact not error where only one issue of fact is involved.

In proceedings under Workmen's Compensation Act, the refusal to submit a proposed

question of fact under Code, art. 101, § 56, was not error, where such fact was the only ultimate fact in issue, and it was clearly submitted to the jury by the instructions granted, since in such case a general verdict is a complete answer to the question.

4. Master and servant

417(5)—Questions of fact in compensation case presented to court before Jury is sworn.

In proceedings under Workmen's Compensation Act, questions of fact should be framed and presented so that they may be passed upon by the court before the jury is sworn.

which the employee was riding upon or attempting to board at the time he was hurt? Answer.

9. Was the train which the employee was attempting to board a train provided by the railway company for the transportation of employees?

Answer.

10. Could the employees of the Central Construction Corporation have ridden on the train which this employee was trying to board hv showing his card or button, or both? Answer.

Argued before BOYD, C. J., and BRIS

Appeal from Baltimore City Court; John J. COE, THOMAS, URNER, and OFFUTT, JJ. Dobler, Judge.

"To to officially reported."

Proceedings under Workmen's Compensation Act by Joel Harrison for compensation for injuries, opposed by the Central Construction Corporation, employer, and the Maryland Casualty Company, insurer. From judgment of the Baltimore city court affirming award for claimant by the State Industrial Accident Commission, the employer and insurer appeal. Affirmed.

Austin J. Lilly and Walter L. Clark, both of Baltimore, for appellants.

Clifton S. Brown, of Baltimore (Milton Roberts, of Baltimore, on the brief), for appellee.

THOMAS, J. This is the second appeal in this case. On the first appeal, reported in 135 Md. 170, 108 Atl. 874, this court, in its statement of the case, said:

"Joel Harrison [the appellee here] was an

Appellants' proposed questions of fact re- employee of the Central Construction Comferred to in opinion follow:

pany, a corporation which was doing certain construction work for the United States government at Edgewood Arsenal, Magnolia, Maryland. He was seriously injured on the 19th of June [July], 1918, and thereafter filed a claim for compensation with the State Indus

The employer and insurer, by their counsel, request the court to submit to the jury impaneled to try this case the following questions of fact in accordance with section 56 of the Workmen's Compensation Law of Mary-trial Accident Commission against the Central land:

Question 1. Was the employee, Joel Harrison, injured while boarding a train of the Pennsylvania Railroad Company?

Answer.

Question 2. Was the train by which Harrison was hurt operated for the sole use of employees of the Central Construction Company? Answer.

Construction Company, employer, and the Maryland Casualty Company, insurer, and was awarded compensation by that body. An appeal was taken by the employer and insurer. The appeal was heard in the Baltimore city court, without a jury, upon a transcript of the record from the Commission, in addition to certain facts set forth in a stipulation between the parties filed in the case and which appears in the record. * * * At the conclusion of

Question 3. Could any persons other than employees of the Central Construction Com-the case the court ruled, as a matter of law, pany ride upon the train by which Harrison that the injury described in the stipulated was hurt? facts and in the papers in the case, under the Answer. circumstances there described, was not one Question 4. Was the employee injured while which arose out of and in the course of his upon any property on which the Central Con-employment within the meaning of the Marystruction Company was engaged in the per-land Workmen's Compensation Act, and in acformance of work? cordance with this holding the decree of the State Industrial Accident Commission was reQuestion 5. Did Central Construction Corpo- versed. From the judgment reversing the ration contract with the Pennsylvania Rail-award of the Commission the appeal before road Company to pay it for the transportation us was taken." of Harrison from Baltimore to Magnolia on the

Answer.

day he was injured? Answer.

Having referred to the provisions of the

the case:

The employer and insurer pray the court to Maryland act, this court said in disposing of submit to the jury the following additional questions of fact involved in this appeal:

6. Did the Central Construction Corporation furnish the employee with transportation? Answer.

"In this case it is not disputed that the appellant was engaged in an extrahazardous employment. The sole question in the case is: Did his injuries arise out of and in the course

7. By whom was the free transportation fur- of that employment? The stipulation to which nished the employee?

Answer.

we have referred discloses the facts and circumstances of the employment as well as the 8. Did the Central Construction Corporation circumstances under which the injuries were provide the vehicle or means of conveyance received, and, in the view we take of the case,.

(118 A.)

Upon the handing down of the opinion and order of this court, the appellees in said case, the appellants here, filed a motion for a reargument, with an elaborate brief in support of their contentions, on the following grounds:

it will be sufficient to refer to what we regard [ the judgment was accordingly reversed and a as the controlling and determining facts ap- new trial awarded. pearing in the stipulation. The appellant lived in Baltimore City. It was a part of his contract with the Central Construction Company that it would furnish him free transportation to his work at Magnolia. He and other workmen of the construction company used certain work trains over the Pennsylvania Railroad from Union Station, Baltimore, to and from their work. The construction company furnished him a button for identification, and this button was evidence to the conductor of his right to free transportation. The superintendent of the company said to the workmen, as expressed in the evidence before the Commission, 'You have free transportation on your button.' It appears from the stipulated facts that on July 19, 1918, Joel Harrison, the employee and claimant in this cause, proceeded to Union Station and there was directed to board what he understood to be a work train of the Pennsylvania Railroad Company bound for Magnolia, and that after boarding said train and after same had left Union Station he was told by a railroad official of said train, the Pennsylvania ticket collector, that the train did not stop at Magnolia, but stopped only at Aberdeen, and that he (Harrison) should leave the train where it made a stop just before reaching Back River station, and take the following work train.

""That accordingly Joel Harrison left said train at the point in the preceding paragraph indicated and walked a distance of several hundred feet into Back River station, and was there told by the Pennsylvania Railroad Company's policeman that the following train would not stop at Back River station, but would stop at the same point where the train which Harrison had just left had stopped, to wit, several hundred feet from the station; that thereupon Harrison went back to the point that he had just left the first train, and was proceeding to board the following train, which in the meantime had pulled in and stopped, when the train suddenly started and threw him under the wheels, causing an injury which directly resulted in the loss of his right foot at a point midway between the knee and ankle.'

"When the injury occurs before the beginning or after the termination of work, there are two general rules applicable to the question as to whether it arose out of and in the course of the employment. The first is that an employee, while on his way to work, is not in the course of his employment. The second is that, where the workman is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work, the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it

is held to have arisen out of and in the course of employment. The cases relied on by the appellees announce and apply the first rule. The second rule has the support of English and American cases."

"(1) That this court had misapprehended vital and fundamental facts upon which the decision in this case necessarily turns and has applied to the facts, as so misconceived, decisions and authorities which, while entirely applicable to the facts assumed, would, if applied to the real facts, result in a contrary decision. "(2) That it appears from the stipulation contained in the record that the claimant was hurt while trying to board a train of the Northern Central Railway at a point far from the premises and place of the work of the employer.

"(3) That said train was not provided for the exclusive use of the employees of this employer.

"(4) That the train which the claimant was attempting to board was not furnished by the employer nor was the fare paid by the employer, either directly or indirectly, but, on the contrary, the fare of all the workmen employed on the construction work was paid for by the United States government under its arrangement with the railroad company."

All of the facts relied on in the motion for reargument clearly appeared in the record of that appeal, and had not been overlooked by the court in its decision, and the motion was accordingly overruled.

The present appeal is by the employer and insurer from a judgment of the Baltimore city court affirming the action of the State Industrial Accident Commission.

At the second trial the case was submitted on the evidence taken before the commission

and the facts agreed to in the stipulation,

all of which were set out in the record of the former appeal and is contained in the present record, and some additional evidence produced by the appellants. The record contains four exceptions, three to the rulings of the court on the evidence, and one to the action of the court on the prayers, and its refusal to submit to the jury certain questions of fact proposed by the appellants.

[1] The additional evidence produced by the appellants at the second trial does not change or affect the material facts presented by the record of the former appeal. The present record shows, as did the record in the first appeal, that the appellee lived in Baltimore City, and that as a part of his contract with the Central Construction Corporation that corporation agreed to furnish him free transportation to his work at Magnolia; that after After referring to these cases, this court his employment, and prior to July 10, 1918, held that the lower court had committed an the Central Construction Corporation arrangerror in its ruling referred to, and in re-ed for the payment of the transportation ex