15 Md. 251 | Md. | 1860
delivered the opinion of this court.
The appellee sued the appellant to recover damages for
. There was evidence to show that Pendergast, a huckster, had occupied a stand for eighteen or twenty years, and he produced at the trial certificates that he had paid for stand No. 12, for the years from May 1853 to May 1856, and from May 1856 to May 1857, the last of which was given by Hatch, as clerk of the market; the acts complained of having occurred in June 1856. There was also evidence that one Little held stand No. 1, in the rear of Pendergast’s, under like certificates from the market clerks, and that tire articles were removed from his stand, and not from that of the plaintiff. Whether this was true or not was to be ascertained by the jury, from the conflicting evidence in the cause; the uncertainty arising, as we suppose, not from any want of confidence in the witnesses, but of definiteness as to the local limits of these stands, which, as the record shows, were not marked or bounded on the pavement.
The appellee claimed the use of the particular place as within the stand which the nar. avers he had rented from the city of Baltimore: the appellant, in defence, relied upon the ordinance regulating markets, and the authority thereby conferred on the clerks of markets; Rev. Ord., 1850, No. 26. Hence we see that the plaintiff, to recover, must show his right to occupy the locus in quo, and, for that purpose, reliance is placed upon the certificate granted by the appellant to the appellee in May 1856, and the use of the stand for eighteen or twenty years previously to the acts complained of.
Upon the claim by possession, we may remark, that title to a market stand cannot be acquired in that way. The ordinance providés the mode of renting such stands, and expressly authorises and directs the clerks, ‘‘to remove and drive off every person using or occupying any stall, bench or stand, in any of the markets, contrary to the true intent and meaning thereof,” Sec. 44. Every seller must be considered as hold-
The first prayer tendered by the defendant, and refused, asserts that the certificate offered by the plaintiff did not vest in him a title to the stand therein mentioned. The solution of this proposition depends on the interpretation of the ordinance, and the character we are to give the paper. The 41st section, provides for licenses to be issued with the approval of the Mayor, on payment therefor of five dollars: but, to prevent loss to the city by failure of persons to obtain licenses, the 42nd section provides that, in that contingency, the party may be punished by fine, and also requires the clerk to collect the license money due by the granting of the certificates, and to pay the same over to the register. Upon a reasonable construction of these sections, we are of opinion, that the payment of the license fee confers on the party a right to use the stand or stall, whether a license be obtained or not. If, therefore, the paper in question was a certificate of payment of the license fee of five dollars for the use of the stand, the prayer was properly refused. If, however, it was a mere receipt for the rent, and the license money was not paid, it did not vest title to the stand, and the prayer ought to have been granted. From its phraseology we suppose the first construction to be the proper one, and affirm the ruling on the first prayer.
We do not perceive any valid objection to the second prayer. It merely submitted to the jury to find the extent of pavement to which the plaintiff was entitled under his certificate for stand No. 12. He could not complain of the removal of his goods from the stand of another person, and whether this was done or not, was one of the questions which the jury could alone decide. ’There wore no local limits of the stands by marks and bounds, but it does not follow that their extent was incapable of ascertainment by the clerk. The plaintiff, as well as that officer, must have known how much stand No. 12, was intended to embrace; and the same was the case as to Little’s stand, and if difficulty arose between these persons, it was the duty of the clerk to interfere,,
The defendant cannot complain of the rejection of his third prayer. Whatever effect a man’s motives may have on the question of damages, they do not determine the aggrieved party’s right to recover.
The court’s instruction, as given, is liable to the objection £hat if left the jury to find whether the plaintiff had received a certificate as required by law, and was using the stand lawfully, which the court only could determine. It also assumed, (contrary to the views expressed in disposing of the first prayer,) that the payment of rent, without reference to the license fee, gave the plaintiff title to the stand.
The exception of the defendant is sustained as to the ruling on the second prayer, and the instruction given by the court.
Judgment reversed and procedendo ordered.
