8 Md. 352 | Md. | 1855
delivered the opinion of this court.
We do not think that the ordinances of the city of Baltimore, applicable to the present case, should receive the construction placed upon them by the counsel for the appellee to the full extent of their argument. They virtually confer on property owners, not only the right of having their own lots improved by paving in front of them, but also the power to compel others to submit to such supposed improvements, and
The defendant’s second prayer asserts, that the evidence on this point was not legally sufficient, and as this proposition, if correct, will dispose of the case, we shall address ourselves to its consideration. There is no testimony to show that Shipley had authority to assent for the owners of the lot whom-he claimed to represent. He states in his evidence, that he told Eschbach that he did not feel authorised to sign for the heirs, but did sign upon the conditions mentioned in the agreement of the 3rd of April 1848. The deed, bearing date April 19th, executed as a compliance with the condition on which Shipley signed the application, and relied on by the appellees as evidence of ratification, cannot be considered as operative from its
But the frame of this prayer is objected to, on the ground that the latter clause assumes the want of assent without submitting the question to the jury, and that the instruction was, therefore, well refused. We do not think so. The theory of the prayer is, that there was no legally sufficient evidence on this point. The record shows there was no proof of assent by Shipley’s heirs, and without the number of front feet owned by them there was not a majority of feet. It is then a case of total failure of evidence, in the legal sense of that expression. There was nothing to be left to the jury. The purpose of the prayer was to take the case from them, on the concession that all the plaintiff’s evidence offered on this point was true and that the jury would so find, yet asserting that the facts conceded did not entitle the plaintiff to a verdict. If the words ■objected to, to wit, “and they not having assented,” had been omitted, or if, instead of these, the words “ therefore,” or “because they have not so assented,” had been used, we suppose the prayer would have been unobjectionable in form. The language employed we consider as a mere statement of a reason for the conclusion of law, that the plaintiff? were not vntilled to recover, as in the above examples.
Eschbach cannot justly complain of this result. Without waiting for the consent of the owners in legal form, he treated with a person who he knew had no authority to act for them, and as the liability of the owners not assenting depends upon the regularity of the proceedings under the ordinances, he must take the consequences of his haste. There being a radical defect in the preliminary proceedings, the judgment must be reversed without procedendo.
Judgment reversed and procedendo refused.