so far as such affidavits may strengthen or Appeal from Superior Court of Baltimore Action by George A. Nagle and others against Harry D. Williar. From a judgment for plaintiffs, defendant appeals. Reversed, and new trial granted. Argued before BOYD, C. J., and BRISCOE, BURKE, WORTHINGTON, THOMAS, and HENRY, JJ. "unless the jury find that it was distinctly understood and agreed by the plaintiffs," etc., is what is complained of by the appellant, as he contends that was not a proper statement of the law, and that, even if it be conceded that it did sufficiently instruct the jury as to one of the defenses, it ignored the other, and hence there was reversible error. There would seem to be no doubt that the prayer is not sustained by the authorities, if we are confined to it alone. If an architect be employed to prepare plans for a house to cost not more than $5,000, he cannot under that employment recover for a house which would cost $10,000. The latter might be of no use whatever to the employer, for he might not be financially able to erect a house at such cost, or, if he was, he might not be desirous of doing so. A dishonest architect could easily impose on his clients if such were the law. Indeed, we do not understand counsel for the appellees to contend in this court that there must necessarily be a distinct agreement on the part of the architect not to charge for his services, unless the building can be constructed at a cost reasonably near the estimate. It BOYD, C. J. The appellees, who are architects, sued the appellant on an account which reads as follows: "To architectural services rendered in preparing working drawings and specifications from January to March, 1906, for apartment house at the northeast corner of Charles and Read streets. Two and one-half per cent. on lowest estimate $125,000.00-$3,125.00." They obtained a verdict for $2,075, and the questions arising on this appeal are on the exceptions is said in their brief: "It is conceded that to the rulings of the lower court in granting the plaintiffs' first and in rejecting the defendant's second prayer. The defendant contends that the plaintiffs undertook to prepare plans for a building, the cost of which would not exceed $90,000; one line of the defense being that the work was undertaken by the plaintiffs under an implied condition that they were to receive no compensation for their services unless a building could be Engineering and Architectural Jurisprudence, erected according to the plans prepared by them for a sum not to exceed that amount, and another being that there was an express agreement to that effect. The testimony offered by the respective parties is conflicting; the plaintiffs denying that there was such an understanding or agreement, either express or implied, while the defendant offered some evidence tending to sustain both of his defenses.. By the plaintiffs' first prayer the jury was instructed that "if they find that the plaintiffs are architects, and the defendant employed them to prepare plans and specifications for a building to be erected on the lot on the corner of Charles and Read streets owned in part by the defendant, and they further find that the plaintiffs did prepare such plans and specifications, then the plaintiffs are entitled to recover, unless the jury find that it was distinctly understood and agreed by the plaintiffs that they should not be entitled to receive any compensation for their services unless the building to be constructed under their plans would cost less than a certain sum of money, and that the same could not be built for the sum of money so specified." The qualification of the prayer, the general principle of law governing the transactions between the owner and architect with regard to the preparation of plans and specifications for a building is that, if the architect makes an estimate of the cost of the building, he is not entitled to his fee, unless the building be constructed at a cost reasonably near that estimated or agreed upon." In their brief they quote from Wait on c. 33, par. 860, that: "An architect employed to prepare plans and specifications of a building and furnish an estimate of the prob. able cost is not upon submitting the same entitled to his fees unless the building can be erected at a cost reasonably approximating that stated in such estimate." They also quoted from 6 Cyc. 30, that "a person employed as an architect to furnish a plan is entitled to remuneration therefor, if made in accordance with the directions of the owner; but he cannot recover where the owner stipulates that the plan should be for a building not to cost over a specified amount, if the plans made are for a building exceeding that sum." The law as stated by the appellees, does not materially differ from that contended for by the appellant, who also relies in part on 6 Cyc. 30, and some of the cases cited by the appellees. If the cost of erecting a building is "reasonably near" or "reasonably approximates" (as some of the authorities express it) that stated in the estimate or understanding of the parties, the owner might very properly be held liable, certainly in many cases, for he knows or as a man of ordinary intelligence may be presumed to know that there may be some slight variance between a building which would cost at least $125,000, the plaintiffs could not recover, yet the qualification in the plaintiffs' prayer was confined entirely to the one defense. When then the jury retired to their room with these con the estimate and the actual cost of the build- | employed to prepare plans for a building not ing. Feltham v. Sharp, 99 Ga. 260, 25 S. E. to cost over $90,000 and furnished them for 619; Nelson v. Spooner, 2 Foster & Finlason, 613; Wait on Eng. and Arch. Juris., supra. Ordinarily that question should be submitted to the jury, unless there be a written contract which has to be entirely construed by the court and has no provision inflicting instructions, what were they to do? it which should be submitted to the jury, but in a case like this, where it was contended that the building to be erected was not to exceed $90,000, while the lowest bid was $125,000, the court could declare as a matter of law that the estimate did not reasonably approximate the cost, which the lower court in effect did in granting the defendant's first and third prayers. In addition to the authorities above referred to, see 2 Am. & Eng. Ency. of Law, 818, Maack v. Schneider, 57 Mo. App. 431, Wees v. Warren, 72 Mo. App. 644, Ada St. M. E. Church v. Garnsey, 66 Ill. 132, Hall v. Los Angeles Co., 74 Cal. 502, 16 Pac. 313, Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049, and 1 Hudson on Bldg. 70, although some of them do not discuss the question fully. While the court below seems to have adopted the doctrine announced by the authorities, it must have either overlooked the effect of the language used in the plaintiffs' prayer, or concluded that the defendant's first and third prayers sufficiently modified it. It is contended by the appellees that the latter are not in conflict with their first, but constitute merely a modification or qualification of the law announced in it. But is that correct? It is true that this court has decided in a number of cases that a defect in a prayer which by itself might be objectionable may be cured by others which are granted, but are those cases applicable to this? Compare for example the defendant's third prayer with the plaintiffs' first. It instructed the jury that if they found that "the plaintiffs undertook to prepare plans and specifications for a building to be erected in Baltimore city to cost not over $90,000, and that the plaintiffs prepared plans and specifications for such building and requested bids thereon, and that the lowest bid received was $125,000, then their verdict must be for the defendant." That is not a mere modification of the plaintiffs' prayer, but it is in direct conflict with it. In the one it was said the plaintiffs could recover "unless the jury find that it was distinctly understood and agreed by the plaintiff's that they should not be entitled to receive any compensation for their services," etc.; while in the other the jury was instructed, in substance, that it was not necessary that there be such understanding and agreement, for that is the effect of both of the defendant's prayers which were granted. In other words, it was not necessary, in order to defeat recovery by the plaintiffs, for the jury to find an express agreement on the subject; If they would first read the plaintiffs' prayer, and then the defendant's prayers, it is not reasonable to suppose that they would con. clude that the court merely intended to submit the qualifications in the alternative, unless they found the express agreement referred to in the plaintiffs' prayer or the implied condition in those of the defendant. If it be said that was possible or even probable, we cannot be certain that such was the case, if we assume the court so intended. Prayers may be so drawn that, although the one does not include the whole case, another does in such way as to avoid the danger of misleading the jury, but this prayer of the plaintiffs instructed the jury that if they found certain facts, which were not disputed, the plaintiffs were entitled to recover, unless they found one other fact, although there was evidence of two facts, either of which was sufficient to prevent recovery, but the court did not say so in that prayer. If the jury found against the defendant on the qualification in the plaintiffs' prayer, then there was nothing to do under it but find a verdict for the plaintiffs. Then when they took up the defendant's prayers, or either of them, they would see, in the first place, that there were no words used to connect them with the plaintiffs' prayer, nothing to show that they were intended to submit another qualification of it, but, if they found for the defendant as to the facts submitted to them in his prayers, they might well have thought "it is true the court has instructed us that if we find these facts our verdict must be for the defendant, but it said in the plaintiffs' prayer that the plaintiffs were entitled to recover, 'unless it was distinctly understood and agreed by the plaintiffs that they should not be entitled to recover any compensation for their services unless the building to be constructed under their plans would cost less than a certain sum of money,' and therefore, as we do not find that it was so distinctly understood and agreed by the plaintiffs, we must find our verdict for the plaintiffs." So it seems to us that, if we assume that the defendant's prayers were intended to be a further modification of the plaintiffs' first prayer, they were in the manner submitted calculated to mislead the jury, and were in fact contradictory; the plaintiffs' theory being, as shown by the prayer, that nothing short of an express understanding or agreement could bar a recovery, while those of the defendant presented the opposite theory, namely, that the contract could be implied from the facts stat prayers in B. & O. R. R. Co. v. Blocher, 27 Md. 286: "The theories of these prayers were prima facie directly opposed. The jury could not without disregarding one or the other come to any correct conclusion." The jury might have reasoned: "We cannot tell which prayer we must be governed by, and, although we think the defendant's evidence sustains the facts set out in his prayers, yet, as we believe the plaintiffs did not distinctly agree that they should only be entitled to compensation for their services as set out in their prayer, we are authorized by that to find our verdict for the plaintiffs, and, as they did actually render the services, they ought to be paid for them." We cannot, therefore, treat the defendant's prayers as mere modifications or qualifications of that of the plaintiffs, and are of the opinion that there was reversible error in granting the latter. The defendant's second prayer, which was rejected, was: "If the jury shall find from the evidence that there was an understanding or agreement between the plaintiffs and the defendant that the services for which suit is brought should not be paid for unless a building could be erected according to the plans and specifications prepared by the plaintiffs for a sum not exceeding $90,000, then their verdict must be for the defendant." We find no reversible error in rejecting that prayer. In the first place, that theory of the defendant was so submitted in the plaintiffs' first prayer that we do not see how he could have been injured, but, in addition to that, it did not submit to the jury the question whether the building could be erected for the sum stated. We understand the appellant to rely mainly on the fact that the account filed by the plaintiffs admitted that the lowest bid was $125,000, but this was originally a suit under the practice act of Baltimore city. When the defendant appears in such action, and complies with the requirements of the statute, the case is then placed on the trial docket, and is governed by the ordinary rules of procedure in actions ex contractu. The plaintiff can claim anything recoverable under his declaration, and the defendant can avail himself of any defense or evidence admissible under his pleas. The plaintiff is not confined to the cause of action originally filed with the declaration, and he and the defendant are not bound or prejudiced by the affidavits originally made under the practice act, "except in so far as the respective averments of these affidavits may strengthen or weaken the other testimony of the party making the affidavits." Councilman v. Towson Bank, 103 Md. 469, 64 Atl. 358, and cases therein cited. The prayer ought to have submitted the question whether the cost of the erection of the building would exceed the sum named. For error in granting the plaintiffs' first prayer, the judgment will be reversed. (Court of Appeals of Maryland. Dec. 9, 1908.) 1. PRINCIPAL AND AGENT (§ 23*)-RELATION OF PARTIES-EVIDENCE. Evidence held to show that complainant was the founder and proprietor of a business, and that defendant was his salesman and confidential clerk. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 41; Dec. Dig. § 23.*] 2. EQUITY (§ 65*)-MAXIMS-CLEAN HANDSAPPLICATION OF RULE. Since the refusal of the court to act always gives defendant an unfair advantage of complainant contrary to the real justice of the case, the application as a defense of the maxim, "He who comes into equity must come with clean hands," is only allowed for reasons of public policy, as a check upon fraud and wrongdoing. [Ed. Note. For other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. § 65.*] 3. EQUITY (§ 65*)-MAXIMS-CLEAN HANDS APPLICATION OF RULE. Complainant before embarking in a new business had given up all his interest in his former business, and all his individual property for the benefit of his creditors, which have yielded or will yield sufficient to satisfy all his obligations. When starting anew in a commission business with other people's merchandise and on others' credit, he opened a bank account in the name of another to prevent the funds from being tied up by attachment proceedings. Held, that he was not guilty of such fraud towards his creditors as would preclude a suit by him to establish his right to the business as against the person in whose name the account was kept and who claimed to be proprietor; the maxim, "He who comes into equity must come with clean hands," not applying. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 185-187; Dec. Dig. § 65.*] 4. PRINCIPAL AND AGENT (8 69*)—Nature OF AGENT'S OBLIGATION. An agent owes to his principal the utmost fidelity, and cannot make any profit for himself from the business in which he is employed, to the principal's detriment. [Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 132; Dec. Dig. § 69.*1 Appeal from Circuit Court of Baltimore City; Charles E. Phelps, Judge. Bill by Charles W. Lord against Harry W. Smith for an injunction and accounting. Decree of dismissal, and complainant appeals. Reversed and remanded. Argued before BOYD, C. J., and BRISCOE, PEARCE, BURKE, WORTHINGTON, HENRY, and THOMAS, JJ. J. Kemp Bartlett and Wm. S. Bansemer, for appellant. Wm. A. Wheatley, for appellee. WORTHINGTON, J. The litigation in this case grows out of a dispute between the parties as to which is the proprietor of a cer tain brokerage business carried on in Baltimore city for a number of years past under the trade name and style of Charles W. Lord, opened a bank account in the name of Harry & Co. The appellant, who was the complainant below, claims that the business was established by him in 1895, and has ever since been conducted by him as the sole proprietor, with the appellee (the defendant below) as his trusted and confidential clerk; while, on the other hand, the appellee contends that the business was established in 1895 by him, and that it has ever since been conducted by him as sole proprietor, with the appellant as his clerk. According to the testimony of the parties themselves, neither of them was aware of the claims and pretensions of the other until the month of November, 1907, when a controversy took place between them concerning the ownership of the business, and Mr. Lord according to his testimony claimed the whole; but, according to Mr. Smith's testimony, Mr. Lord said in the course of that controversy that he had as much interest in the business as Smith had, that half of it was his. At the same time Smith claimed that the whole business belonged to him. Shortly after this conversation that is to say, on December 24, 1907Mr. Lord filed the bill of complaint in this case in the circuit court for Baltimore city, setting forth his claims to the business as sole proprietor, alleging that he had established the business in the early part of the year 1895 at 21 Grant street, in Baltimore city, and had there begun operations as a manufacturer's agent of woodenware and kindred merchandise; that Harry W. Smith, the defendant, had been taken into the employ of the old firm of Lord & Robinson when he was a boy 15 years of age, and had continued in its employ for many years until the failure of that firm in 1893; that complainant had been a member of the firm of Lord & Robinson until it went into the hands of receivers in the year 1893, and that there had developed toward Smith on complainant's part an attitude of trust and confidence; that, upon commencing business again after his failure, the complainant took with him to 21 Grant street the said Harry W. Smith, in whose integrity he had implicit confidence, at the weekly salary of $15 per week, which was subsequently increased to $25 per week; that at the time he started the new business the complainant was not entirely free from the obligations of the old firm, and as he contemplated handling in a fiduciary capacity, to wit, that of factor or sales agent, the money of such of his old business associates as might entrust the sales of their merchandise to him, he feared that if he opened a bank account in his own name, and deposited therein such moneys together with his own earnings, that such funds might be subject to the danger of being tied up by proceedings instituted by some of his old creditors, who had not at that time been settled with, and, for W. Smith, with his consent, and took a power of attorney from the said Smith, authorizing the complainant to draw checks against said account; that both he and Smith thereafter drew checks upon this account so opened in the name of Smith, and that such practice was continued down to the time of filing the bill of complaint; that, by reason of the confidential relations between the complainant and Smith, the latter was allowed broad powers in the handling of the complainant's cash and bank deposits, and that Smith, acting under these broad powers, would from time to time draw checks for his own purposes over and above his weekly salary of $25, and charge them on the books of the complainant, and would from time to time purport to put back sums of money to replace the amounts so withdrawn, which sums put back, however, did not in fact measure up to the amounts withdrawn; that in the course of time the excess of the withdrawals by Smith over the amounts put back by him was over $9,000, not including withdrawals from the cash drawer; that in October, 1907, Smith had purchased with $1,750 of the complainant's money a ground rent in the dwelling property known as No. 2318 Guilford avenue, in Baltimore city. The bill further averred that Smith had recently set up pretensions that he was the sole owner and proprietor of the business, and that all the money taken by him was his own money for which he was accountable to no one; that Smith had threatened, unless complainant would recognize Smith's pretensions, to solicit away from the complainant his patrons and customers, which it was averred Smith was able to do. The prayers of the bill were for an injunction: (1) Prohibiting said Harry W. Smith from exercising any control or interference in the complainant's business as it was known under his trade-name of Charles W. Lord & Co. (2) That said Smith be enjoined from collecting any moneys, or from diverting any consignments coming or due to the said Charles W. Lord & Co. (3) That he be further enjoined from making any withdrawals from the bank deposit of the complainant standing in the name of Harry W. Smith in the National Bank of Commerce of Baltimore. (4) That he be further enjoined from removing any of the books of account or other evidence of the state of business of Charles W. Lord & Co. from the office thereof, and that he return and replace in said office any books or other evidences of account of said business that were then under his individual control. (5) That he be further enjoined from soliciting the patrons of the complainant, trading under the name of Charles W. Lord & Co., to discontinue business with the complainant, and to give their patronage to the said Smith. (6) That pending these proceedings the defendant be fur Smith's name not being mentioned in con. nection therewith. Besides this, Mr. Lord produced at the hearing below books of entry concerning the business from its very beginning in 1895 to the time the controversy between him and the defendant arose in 1907, in which books were entered the items of cash received and cash paid out during the whole period, as it seems; these entries in many respects substantiating Lord's claim to be the founder and sole proprietor of the business. The production of these books, ground No. 2318 Guilford avenue, mentioned | the assessment of the property of the conin the bill of complaint; also that said Har-cern on the tax books of Baltimore city was ry W. Smith discover and set forth in detail in the name of Charles W. Lord & Co.; all the sums of money taken by him during the whole period of his employment since 1895 in excess of $25 a week for services, and that Smith be decreed to make restitution and payment of all sums of money shown to be due by him to the complainant, and for general relief. The same day an injunction prohibitory and mandatory was issued as prayed in the bill of complaint, except as to the prohibition against the disposition of the lot on Guilford avenue. On February 17, 1908, the defendant filed his answer, denying all the material allegations of the bill of complaint, and averring that he himself "was, has all the time been, and still is the sole owner of said business," and that no money had ever been contributed toward or used in said business except the defendant's own money, or money borrowed by him for that purpose; that the complainant had never made any pretensions to be any other than an employé of the defendant until shortly before filing the bill of complaint, and then he claimed to be only part owner of the business. He asked that the injunction theretofore granted be dissolved, and the bill dismissed. After much time and patience spent in comparing the evidence of the several witnesses, we have finally been able to thread our way through the great mass of most conflicting testimony taken to support the contentions and claims of the respective parties. or at least of some of them, was evidently a great surprise to Smith, who testified that he understood from Mr. Lord that they had been burned in the great fire of February, 1904. These books show the payment weekly to Harry W. Smith on every Saturday at first of the sum of $15, and later of the sum of $25, charged either to "hands" or "expenses," and .the entries continue regularly from week to week down to October 10, 1903, and most of these entries, as it appears, were made in the handwriting of Smith himself. The withdrawals of money by Mr. Lord, however, were not charged to either "hands" or "expenses" or any other distinct account, and, besides, they vary in amount from time to time; thus clearly indicating that Smith worked on a salary, and that Lord did not. Another significant fact is that the contracts for the rental of the rooms at different times occupied for the purposes of the business and the rent bills for the use of the same were invariably made in the name of Charles W. Lord & Co. It would extend this opinion to an unreasonable length to attempt to set out here a synopsis of the evidence, consisting as it does of over 600 printed pages, but, after the most Another quite significant fact, and one careful consideration that we have been able that cannot be disputed, is that the license to give the case, we are unable to reconcile to carry on the business was from 1895 to the claims of Smith with certain material 1907 always issued to Charles W. Lord alone, facts established by the exhibits and docu- and this was true, although the applicant mentary evidence produced at the hearing. who made the representations to the license One of these facts is that at the very com- clerk apparently under oath was several mencement of the business in 1895 certain times H. W. Smith himself. In the year office furniture of the old firm of Lord & 1907, however, upon the application of Smith, Robinson was purchased of the receivers of the license was issued for the first time to the firm for the use of the new concern at Charles W. Lord and Harry W. Smith, trad21 Grant street. Lord testified that he gave ing as Charles W. Lord & Co. Much other the money ($25) to Smith with which to buy testimony of a character tending to prove the property for him. Smith, on the other Mr. Lord to be the founder and proprietor of hand, testified that he bought the furniture the business was adduced, but need not be with his own money for his own use. A re- referred to here in detail. Mr. Smith, on ceipt was, however, finally produced by the other hand, relied upon the fact that the Lord, which on its face shows that the mon- bank account was in his name, and checked ey had actually been paid by Smith, but on upon by him at all times as he saw fit; that, the back of the receipt and of the same date besides his regular weekly salary charged to was the following indorsement, signed by him as such, he drew various sums from time Smith: "For value received I hereby trans- to time in the aggregate largely in excess of fer the articles mentioned to Charles W. his salary, some of which afterwards he reLord. [Signed] H. W. Smith." Smith's ex- turned, and some he did not, claiming that, planation of why he made this transfer, in as the business was his, he was not acview of the fact that he claimed to have countable to any one for such withdrawals. himself established the business, is in our He further relied upon the fact that the injudgment far short of being satisfactory.surance on the stock carried by the concern |