[3] Counsel for Thompson contends that the alternative order for bail or judgment within 30 days was made without notice to him, and was irregular, and deprived him of his constitutional right to trial by jury. This contention does not appear to have been made below. But the findings of fact show that before the order of the court was made

Thompson appeared in the cause by his attorney, and such appearance is taken to have been general, the contrary not appearing; and, while it appears that counsel for Thompson was not physically present when the order was made, it does not appear why he was not, nor does anything appear that affected the right of the county court to take the action which it did. The findings show that counsel for Thompson received no notice of the order after it was made until some days before this petition was brought, but they also show that Morrison was without fault in the matter. Whether an application to bring forward a case should have the form and requisites of a petition, rather than those of a mere motion, is a question

neither raised nor argued.

It is not necessary to consider whether or not audita querela would lie if the exceptions showed the grievances of which counsel for Thompson complains in his brief. Judgment affirmed.

2. ASSUMPSIT, ACTION OF (§ 23*)-PLEADING -GENERAL ISSUE.

A defendant in assumpsit who pleads the general issue to the declaration containing the common counts and a special count alleging a contract of employment may prove payment in whole or in part of any indebtedness which may have existed.

[Ed. Note. For other cases, see Assumpsit, Action of, Cent. Dig. § 144; Dec. Dig. § 23.*] 3. EXECUTORS AND ADMINISTRATORS (§ 450*) -ESTABLISHMENT OF CLAIMS-EVIDENCE-ADMISSIBILITY.

ment of the heirs, was admissible as bearing on the good faith of the claim as against the objection that the evidence showed a compromise.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 450.*] 4. PAYMENT (§ 70*) - EVIDENCE-ADMISSIBIL

ITY.

Where, in an action to establish a claim against a decedent's estate for services rendered in managing a bakery of decedent, the evidence showed that decedent had not been indebted to claimant in any other way than for such services, and that claimant was a married man, and that his principal work was that of baker, evidence that during the period covered by the bill for services he had received from decedent checks which he had cashed or had deposited to his credit was admissible to show payment.

[Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 203-218; Dec. Dig. § 70.*] 5. PAYMENT (§ 65*) - CLAIM FOR SERVICESEVIDENCE OF INDIGENT CONDITION CLAIMANT.

OF

[Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 162-175; Dec. Dig. § 65.*] 6. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR ERRONEOUS ADMISSION OF EVIDENCE.

In an action against a decedent's estate to establish a claim for services for managing a bakery of decedent, evidence of why a license for a year was taken out in claimant's name, instead of in the name of decedent, his mother, was not prejudicial to the estate.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4153-4160; Dec. Dig. § 1050.*]

7. TRIAL (§ 243*)-INSTRUCTIONS.

Where, in an action to establish a claim against a decedent's estate, the declaration contained the common counts and a special count alleging a contract of employment to manage a bakery of decedent for a specified compensation, a charge that if decedent promised to pay

claimant a specified sum per month, or promised to pay him for the work performed, and

if the specified sum per month was a reasonable compensation for the work performed, the verdict should be for claimant for such sum as the jury might find to be due for the work performed, was not objectionable as containing conflicting propositions of law, but merely asserted alternative propositions, on either of which claimant might recover.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.*] 8. TRIAL (§ 243*)-INSTRUCTIONS.

Where, in an action to establish a claim against a decedent's estate, the declaration contained the common counts and a special count averring a contract of employment to manage a bakery of decedent, and the evidence showed that claimant obtained in his own name a license for a year, a charge that the jury might consider the fact that decedent did not have a license in determining the question as to whether the business was conducted by her was not in conflict with a charge authorizing ant a specified sum per month for the work not conduct the business did not of itself preclude a recovery.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 564, 565; Dec. Dig. § 243.*]

9. EXECUTORS AND ADMINISTRATORS (§ 451*) -ESTABLISHMENT OF CLAIMS-EVIDENCEINSTRUCTIONS.

Where, in proceedings to establish a claim against a decedent's estate for services rendered in managing a bakery of decedent, the evidence showed that claimant, a son of decedent, had been appointed executor, and had not included in the inventory the chattels in the bakery at the time of decedent's death, and there was evidence that the chattels did not belong to decedent, but to a third person, a charge that claimant was estopped from claiming that decedent was the owner of the business if the jury found that he did not include in the inventory the chattels in the bakery was properly refused.

[Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 451.*]

10. EXECUTORS AND ADMINISTRATORS (§ 451*) -EVIDENCE-INSTRUCTIONS - APPLICABIL

ITY.

Where, in an action against decedent's estate, there was evidence of an express promise by decedent to pay claimant for services rendered, a charge that there was no sufficient evidence to prove a design on the part of claimant at the time of the rendition of the services to charge therefor and an expectation on the part of decedent to pay was properly refused.

[Ed. Note. For other cases, see Executors and Administrators, Dec. Dig. § 451.*]

11. FRAUDS, STATUTE OF (§ 23*)-ORIGINAL

PROMISE TO PAY-EVIDENCE.

Proof that a decedent promised to pay for work done by another was proof of an original undertaking and was binding, though not in writing.

[Ed. Note. For other cases, see Frauds, Statute of, Dec. Dig. § 23.*]

12. EXECUTORS AND ADMINISTRATORS (§ 450*) -EVIDENCE-INSTRUCTIONS APPLICABIL

ITY.

Where, in an action to establish a claim against a decedent's estate, the declaration alleged a contract of employment to manage a bakery of decedent, and there was evidence of an express promise by decedent to pay for such services, a charge that there was no legally sufficient evidence to authorize claimant to recover was properly refused.

[Ed. Note.-For other cases, see Executors and Administrators, Dec. Dig. § 450.*]

13. MONEY PAID (§ 1*)-GROUNDS OF OBLIGATION.

To sustain a recovery for money paid by another at his request, it must be alleged and proved that the money was paid on the request, expressed or implied, of the latter.

[Ed. Note. For other cases, see Money Paid, Cent. Dig. §§ 1-16; Dec. Dig. $ 1.*]

Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.

Action by Harry N. Simmers against Nora E. Huff, administratrix with will annexed of Flora B. Simmers, deceased. From a judgment for plaintiff, defendant appeals. Reversed, and new trial awarded.

Argued before BOYD, O. J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER, JJ.

Harvey R. Spessard and Levin Stonebraker, for appellant. Joseph W. Wolfinger, for appellee.

BURKE, J. The appellee recovered a judgment against the appellant in the circuit court for Washington county, and this is the defendant's appeal. It involves the correctness of three rulings made by the lower court during the progress of the trial upon questions of evidence and instructions to the jury granted at the close of the whole case. As the case must be remanded for a new trial, we will refrain upon commenting upon the evidence, except so far as it may be necessary to make clear the reasons upon which our decision rests. The suit is in assumpsit against the administrator c. t. a. of Flora B. Simmers, deceased, who was the mother of the plaintiff. The declaration contained the common counts, and one special count which alleged that Flora B. Simmers on or about the 1st day of January, 1907, agreed with and promised the plaintiff that, if he would conduct and manage the bakery owned and controlled by her, she would pay the plaintiff for his services; that he did conduct and manage said bakery until or about January 1, 1909, but had not been paid for his services thus rendered. The plaintiff filed the following bill of particulars:

Hagerstown, Md., March 2, 1910. The Estate of Flora B. Simmers, to Harry N. Simmers, Dr.

To amount paid Dr. A. A. Lamar for
medicine and medical service to
Flora B. Simmers, during her life-
time

To amount paid George B. Oswald,
for interest on mortgage against
Metz property for Flora B. Sim-
mers, during her lifetime.
To amount paid D. W. Reichard, col-
lector of state and county taxes for
1908, for Flora B. Simmers, during
her lifetime..

To services rendered Flora B. Sim-
mers during her lifetime, in con-
ducting and managing the bakery
of the said Flora B. Simmers from
the 1st day of January, 1907, to
the 1st day of January, 1909 (24
months), at $30 per month...
To amount paid L. J. Orrick on ac-
count of Flora B. Simmers, during
her lifetime.......

...

$ 20.00

180.00

14.00

720.00

99.76

$1,034.23

The defendant pleaded the general issue pleas upon which issue was joined. No evidence was offered to support the second and third items of the bill of particulars, and by the defendant's third prayer, which was conceded, the jury was instructed that no recovery could be had for either of these charges. The evidence shows that Thomas Simmers, the father of the plaintiff, died on or about the 1st of December, 1907. At the time of his death and for a number of years and small confectionery store at Smithsburg, in Washington county. A trader's license for the conduct of this business had been issued to him for the six years immediately preceding his death. The one issued to him in 1907 expired on May 1, 1908. There was evidence to the effect that the fixtures and stock in trade in this store and bakery had been supplied by Mrs. Caroline Norford, and at the death of Flora B. Simmers, her daughter, they belonged to her. Mrs. Norford testified that the death of her daughter, Mrs. Simmers, the counters, shelving, appliances, and stock in trade belonged to her; that she had started the store many years ago. Declarations of Flora B. Simmers were put in evidence to the effect that the fixtures had been put in by her mother, and that she was to have the use of them as long as she wanted, and that, "if she happened to die before her mother, they were to be her mother's, and that her mother furnished the money to finish paying for the stock she bought." No administration was had upon the estate of Thomas Simmers, and for the year 1908 (the year succeeding his death) the license for the conduct of the business was issued to the plaintiff. Mrs. Simmers died in December, 1908, leaving a last will and testament in which the plaintiff was appointed executor, and in the inventory of her personal estate no return, or mention was made of the chattels or stock in trade of the bakery or store. The plaintiff was removed by the orphans' court of Washington county as executor, and the ap

Mrs. Simmers say that she would pay the plaintiff $30 per month for his work. J. L. Orrick, a baker, testified that the work done by the plaintiff was worth $8 per week. This evidence, if believed by the jury, would have entitled the plaintiff to a verdict for the services rendered in pursuance of his mother's promise.

[1, 2] Under the pleadings, it was competent for the defendant to show either that Mrs. Simmers was never indebted to the plaintiff, or that any indebtedness which may have existed had been wholly or partly paid. Any facts and circumstances from which it might be reasonably inferred that she never owed the plaintiff, or that her indebtedness to him, if any existed, had been paid, were admissible.

[3] The defendant offered to prove by Mrs. Clarine Norford that on or about February or March after the death of Mrs. Simmers

the plaintiff "presented a paper to her which he then and there explained was a claim for $2,500, which he desired to bring against the estate of his mother, Flora B. Simmers, for working and baking for his father for 15 years," and offered to follow this up "by proving by Thomas E. Hilliard, register of wills, that in conversation that he had with Mr. Simmers, the plaintiff, in connection with this said alleged claim of $2,500, that he then and there told the said Harry N. Simmers that it was the custom of the court, meaning thereby the orphans' court, where an executor presented a bill or claim, to ask him to get the indorsement of the heirs."

The refusal of the court to permit this ev

idence to be introduced constitutes the first exception. There is evidence in the record that the plaintiff testified before the orphans' court in the proceedings had therein to remove him as executor that "he had no claim at all against his mother's estate." The proffered testimony should have been admitted as it reflected upon the bona fides of the claim made in this suit. It is said in Brooke v. Winters, 39 Md. 505, that "the rule that excludes facts because they are collateral does not apply to facts wherever existing, if they may afford any reasonable presumption as to the matter in dispute. Whether they are facts before or after the suit they are admissible if they may illustrate, or explain the question in issue." Counsel for the appellee contended that the evidence was properly excluded because it offends against the rule which forbids offers of compromises to be admitted in evidence. But we do not regard the interview between the plaintiff and Mrs. Norford, or the statements made by the plaintiff to her as being within the rule. The sole object which the plaintiff had in mind in approaching the witness was to secure her indorsement of the claim preparatory to its presentation to the orphans' court. as he was advised it was customary to do

pellant was appointed administrator c. t. a. of the estate of Mrs. Simmers. It appears that during the latter part of the year 1907 Thomas Simmers was in feeble health, and not able to attend to business, and there is evidence on behalf of the plaintiff that, after the death of Thomas Simmers, Mrs. Flora B. Simmers conducted the bakery and store until her death in December, 1908, although the license was issued to the plaintiff. The plaintiff produced a number of witnesses who testified that during the years 1907 and 1908 the plaintiff did general work in connection with the bakery and the store; that he cut the wood for the oven, did the baking, and attended to the business. Mrs. Virginia Simmers, wife of the plaintiff, testified that the plaintiff did the work in connection with the store and bakery; that she heard Mrs. Simmers ask her husband to do the work, and attend to everything; that his father was not able to do anything; and that she would pay him. This the witness said was in June, 1907, and that "right after" the death of his father Mrs. Simmers told the plaintiff that, if he would stay there and work for her, she would pay him $30 per month; that her husband did the work until the business was closed in April, 1910. Mrs.

facts do not bring the statements within the rule stated in the case of Reynolds v. Manning, 15 Md. 526; Biggs v. Langhammer, 103 Md. 102, 63 Atl. 198; Acker, Merrall & Co. v. McGaw, 106 Md. 560, 68 Atl. 17, and other cases relating to the inadmissibility of of fers to compromise.

[4] The defendant offered to prove by Walter Brenner, the cashier of the Smithsburg Bank, that during the period covered by the bill of particulars the plaintiff had received the proceeds of two checks, aggregating the sum of $525, drawn by Flora B. Simmers on the Smithsburg Bank to the order of the plaintiff; that the plaintiff received in cash from the bank $350, the amount of two of these checks, and that the amount of one check, to wit, $175, was deposited to his credit. The court refused to permit the introduction of this testimony, and this ruling constitutes the second exception. It is settled in this state that under the general issue in assumpsit the defendant may offer evidence of payment. 1 Poe on Pleading, §§ 607-609; Seff v. Brotman, 108 Md. 278, 70 Atl. 106, and cases therein cited. It is not claimed that the mother of the plaintiff was ever indebted to him in any way other than as stated in the bill of particulars. The plaintiff was a married man, and lived in the same house in which the store and bakery were located. The work he did was principally that of a baker, and the evidence is such that it might be reasonably inferred that he was dependent upon his weekly wages for the support of himself and family. His account allows his mother no credit whatever, and yet during the period he claims to have worked for her he received from her the sums mentioned. In the absence of some explanation, the jury might have well concluded that this money or some part of it was paid for the services sued for. The receipt of the money in connection with the relation of the parties and the financial condition of the plaintiff should have been admitted in evidence.

[5] It has been held that the fact that the plaintiff during the period when he might have enforced his claim by suit, if he had one, was in indigent circumstances, and needed the use of the money, is a circumstance tending to justify the presumption that the demand has been paid or otherwise satisfied. In addition to this circumstance, affording a presumption of payment under the facts in this case, we have the further fact of the actual payment by his mother of substantial sums of money during the identical period embraced in the bill of particulars.

[6] There was no error in the ruling on the third exception whereby the plaintiff was permitted to say why the license for the year 1908 was taken out in his name. His answer to the excepted question in no way injured the defendant.

This brings us to the rulings on the pray

prayer, and the defendant's fifth and eighth prayers. The defendant's second, third, and fourth prayers were conceded, and his first, sixth, seventh, ninth, tenth, and eleventh were refused. The granted and conceded prayers put the case, so far as it related to the recovery for the services sued for, as fairly and as favorably to the jury as the defendant had a right to expect.

[7] The plaintiff's first prayer told the jury that if they believed from the evidence that the defendant's decedent, Flora B. Simmers, promised to pay the plaintiff $30 per month for the work performed by him as testified to and sued for in this case, or promised to pay him for the work performed by him as testified to and sued for in this case, and shall further find that $30 per month was a reasonable and just compensation for the work thus performed, and shall further find that the plaintiff performed the work as testified to, then their verdict must be for the plaintiff for such sum as the jury may find to be due for the work thus performed. We see no good objection to this prayer. Its postulate in either alternative in which it allowed a recovery was the express promise to pay for the work done by the plaintiff; the amount of the recovery in either event being limited by the prayer to "such sum as the jury may find to be due for the work thus performed." The appellant contended that the prayer contained conflicting propositions of law, and the case of Western Maryland Railroad Company v. Kehoe, 83Md. 434, 35 Atl. 90, is relied upon to support this contention. We see no reason for reviewing that case which in its facts was wholly dissimilar to this, as we do not understand that that decision supports the appellant's position. The court there held that there was no evidence to support the first alternative of the plaintiff's fourth prayer, and that the failure of the defendant to discover the perilous situation of the plaintiff under the circumstances did not constitute negligence on the part of the defendant. In this case the plaintiff would have been entitled to recover upon either alternative, if the jury found that one or the other was supported by the evidence. The prayer does not contain conflicting propositions, as the one in Kehoe's Case did, but merely asserts alternative propositions upon either of which he might have recovered. Nor is the prayer in conflict with the defendant's fifth prayer, which was granted.

[8] That prayer told the jury that, if they found that Flora B. Simmers did not have a license during the period in which the services sued for were rendered, they might consider that fact in determining the question as to whether said business was being conducted by her. The mere fact that she did not conduct the business would not of itself preclude a recovery. The defendant's sixth, seventh, ninth, tenth, and eleventh

[9] The sixth prayer asserted that the plaintiff was estopped from claiming or contending that Flora B. Simmers was the owner of the business, if they found that he did not include in the inventory the chattels, etc., in the store and bakery at the time of her death. The evidence which we have quoted explains why they were omitted, and tends to show that they did not belong to the deceased.

[10] The seventh prayer asserted that there was no legally sufficient evidence in the case to prove that there was a design on the part of the plaintiff at the time of the rendition of the services to charge and an expectation on the part of Flora B. Simmers to pay for the services. The evidence that there was an express promise by Mrs. Simmers to pay for these services was sufficient to cause the refusal of this prayer. By his ninth prayer the defendant asked the court to instruct the jury that if they found that Thomas Simmers was the owner in his lifetime of the bakery and store referred to in the evidence, and should further find that he died on or about the 2d of December, 1907, "then the jury are instructed that the plaintiff is not entitled to recover for any services rendered in connection with the management and conduct of said store and bakery prior to the 2d day of December, 1907, unless the jury shall further find that the said Flora B.

Simmers, deceased, promised in writing to pay for said services, and the jury are further instructed that there is no legally sufficient evidence in this case to prove that the said Flora B. Simmers, deceased, promised in writing to pay for said services."

[11] Mrs. Virginia Simmers testified that Flora B. Simmers in June, 1907, promised to pay for the work done by the plaintiff. This, if true, constituted an original undertaking on her part, and because of this testimony the prayer could not have been granted.

[12] The eleventh prayer asserted that, under the pleadings, there was no legally sufficient evidence to entitle the plaintiff to recover under the special contract for services. This prayer was properly refused in view of the evidence we have referred to tending to prove a special contract made by Mrs. Simmers with the plaintiff.

The defendant's first prayer should have been granted. The court was asked by this prayer to instruct the jury that there was no legally sufficient evidence in the case to entitle the plaintiff to recover for any money paid by the plaintiff for or on behalf of Mrs. Simmers. In the bill of particulars there is a charge of $20 paid to Dr. A. A. Lamar for medicine and medical service rendered to Mrs. Simmers during her lifetime.

ceased in her lifetime at her request. To sustain a recovery under this count, it must be alleged and proved that the money was paid upon the request, express or implied, of Mrs. Simmers. The only evidence in the record relating to this claim is that of Mrs. Virginia Simmers to the effect that the plaintiff got medicine from Doctor Lamar for his mother, and she thought she "saw about five dollars paid." In 1 Poe on Pleading, § 107, it is said that it is not sufficient to prove the defendant's liability to a third person, and that the plaintiff discharged that liability, for the payment may have been gratuitous or officious; and the mere fact that the defendant derived an advantage from it will not authorize a recovery. If the rejection of this prayer were the only erroneous rulings in the case, we would not be disposed to disturb the judgment, as the injury thereby resulting to the plaintiff was slight; but there was serious error committed in the ruling on the first and second exceptions, and the judgment must, therefore, be reverseď and a new trial awarded.

Judgment reversed and new trial awarded, the appellee to pay the costs.

In an action by a seller for breach of a contract for the purchase of cotton goods, calling for deliveries over a period of several months, and rescinded by the buyer because the early deliveries were not in compliance with the contract as to quality, the propriety of the rescission cannot be determined by any evidence as to the quality of the undelivered goods, but only as to those delivered.

[Ed. Note.-For other cases, see Sales, Cent. Dig. § 293; Dec. Dig. § 119.*]

2. SALES (§ 119*) - RESCISSION BY BUYER GROUNDS-NONCOMPLIANCE WITH CONTRACT.

Where a contract for the sale of cotton goods called for weekly deliveries of "firsts" over a period of several months, the delivery of "seconds" in the first few deliveries warranted a rescission by the buyer of the contract as to all undelivered goods.

[Ed. Note. For other cases, see Sales, Cent. Dig. § 293; Dec. Dig. § 119.*]

3. SALES (§ 121*) -RESCISSION BY BUYERWAIVER OF RIGHT.

Where a manufacturer of cotton goods contracted to sell a large quantity of "firsts," deliveries to be made weekly over several months, the goods, according to the course of trade, to be shipped to finishing mills direct from the factory, to be finished for the buyer when ordered by him, who thus had no opportunity for inspection, and the goods in the first four shipments were promptly discovered at the finishing mills to be "seconds" and as such unavailable for the purposes for which they were sold, the fact that the second, third, and fourth shipments which had been ordered to be finished before ar