(113 A.) going to do about it, and that he replied that he was not going to do anything until he heard from the defendants, and that he then told McGwinn that if they were not there by 10 o'clock the next morning he would proceed to file a bill. On cross-examination he said he did not know why he did not go to see Annie S. Johnson the night of July 29th instead of calling her up by phone, and that he knew that the defendants lived in Hagerstown. Annie S. Johnson testified that she lived in Hagerstown, and that the property in question belonged to her; that she never authorized Bundy to sell the property, but that he sent her the two contracts with the check for $50, and that when she received them she took them to an attorney to find out whether it was necessary for her to sign them, as her name had already been signed to the contracts, and she took the check to the bank to find out if it was good; that her He further testified on cross-examination husband made the interlineation in the conas follows: "Q. When this contract was presented to you, did you see that it had interlineations in lead pencil? A. Yes, sir. Q. Was that your agreement? A. No, sir; I didn't purchase on the 30day contract; I signed the agreement 60-day contract. Q. Did you sign the agreement before it came from Mrs. Johnson? A. Yes, sir; the agreement was all made up and came back to me altered. Q. Had Mr. Bundy told you that the agreement would be sent up here for Mrs. Johnson's approval? A. Yes, sir. Q. And when it came back there was an interlineation in it, and you didn't make any inquiry about it? A. Yes, sir. Q. From whom? A. Mr. Bundy asked me to get my money under the 30-day contract; get my money immediately. Q. Then if Mrs. Johnson was insisting upon it being settled within 30 days, and you were insisting that it be settled in 60 days A. The agent agreed; that is the only party I know in the matter. Q. And when you signed the contract you knew the agent would have to submit it for approval? A. Yes, sir. Q. Then you took it according to your notion as to the time, 60 days, when you knew that it came back to you interlined, providing for settlement within 30 days, that is a fact? A. I didn't accept it on those terms. Q. You saw the contract after it came back after it had been submitted for approval or disapproval, and you saw then that it had been changed and without making any further inquiry- A. I made further inquiry. Q. Where? A. When I seen the lead pencil interlineation, I said, 'I don't want it; get me my check, my $50.' Mr. Bundy informed me that the 60 days was all right. Q. So far as you and Mrs. Johnson were concerned, you never did get together on whether it was a 30-day or a 60-day contract? A. I wasn't dealing with Mrs. Johnson. Q. You were concerned that it should be 60 days? A. Nothing less. Q. You knew that Mrs. Johnson had interlined not less than 30 days? A. Yes. Q. Then there distinct negotiations on that proposition between you; you were contending for one time and she another? A. I got my time through the agent; we agreed on our time. Q. (by the Court). When you were insisting on the 60 days, knowing that Mrs. Johnson had inserted 30 days there, what information did you get as to whether or not Mrs. Johnson agreed to the 60 days? A. I don't know nothing about what they agreed. Q. (by the Court). Did you ever get any information on that? A. Got it from Mr. Bundy. Q. What information? A. I throwed the contract back-gave me-I wouldn't have it for 30 days; 'just give me my money.' He said: 'It is all right; I am acting for them; was as not tracts at her request, making the date of [1, 2] The appeal is from the decree of the of the court below, denying the relief prayed and dismissing the bill, and the evidence to which we have referred leaves no doubt as to the correctness of that conclusion. The appellant insists that whether the date of was 30 or 60 days, the time of settlement was not of the essence of the contract. The general rule in equity is that a stipulation as to time of payment of the purchase price is not regarded as a condition which requires strict performance to entitle a vendee to have the sale consummated. But this general rule is subject to the qualification that a purpose to make time of the essence of the contract may be disclosed by its terms, or by the circumstances and object of its execution and the conduct of the parties, and that "in every instance it is a question of intention to be determined upon the facts of the particular case." Acme Bldg. Co. v. Mitchell, 129 Md. 406, 99 Atl. 545, Ann. Cas. 1918D, 396. a person offers to do a definite thing and another accepts conditionally or introduces a new term into the acceptance, his answer is either a mere expression of willingness to treat or it is a counter proposal, and in neither case is there an agreement." We do not mean to say that it is requisite for a contract of sale that the time of payment be specified. On the contrary, where there is no such stipulation, it will be presumed that the parties intended payment to be made within a reasonable time. But where parties attempt to contract with reference to a sale of property and the terms of such sale, and the negotiations reach no further than an offer and a counter proposal, neither of which are accepted, there is no agreement or contract upon which an action at law or suit in equity may be based. In this view of the case it is not necessary to consider other questions presented by the record further than to refer to the fact that the alleged contract was not signed by John B. Johnson, or by any one for him, and to the further fact that the only offer to contract with which he was at all connected was the offer contained in the altered contract returned to the plaintiff, and which the plaintiff refused to accept. In the case at bar both parties treated the stipulation as to the time of settlement as a matter of vital importance, and there is no satisfactory evidence of a waiver or assent on the part of the defendants to an extension of the time. Unless, therefore, parties are to be denied the right to contract as they please, it would be difficult to hold that it was not the intention of the parties in this case to make the time of settlement an essential feature of the contract. That, however, is not the question here. The defendants' answer was in effect a denial of the execution of the contract sued on and sought to be enforced, and the undisputed evidence is that the defendants refused to approve and adopt the contract executed by Bundy as their agent, and that when they altered or changed it by interlineation so as to make it conform to the contract which they were willing to make, the plaintiff, who knew that Bundy had no authority to make a contract for. them, refused to accept it or to assent to such alteration until Bundy, who had no authority to do so, assurred him that he could disregard the alteration made by the defendants. It is evident therefore that the defendants never became parties to the contract submitted by the plaintiff, and that the plaintiff never assented to the contract altered by the defendants, and that there was in fact no contract at all. Of course the evidence shows that the plaintiff was willing to buy the property for $2,200, and that the defendants were wiling to sell it at that price, but it also shows that they never reached an agreement upon the terms of sale, and that there never was a complete agreement for the sale of the property. It is said in 9 Cyc. 245: "There can never be a contract in the true in the absence of the element of agreement, or mutual assent of the parties." sense, Decree affirmed, with costs. (137 Md. 642) ULMAN et al. v. STATE. (No. 92.) Court of Appeals of Maryland. Jan. 13, 1921.) Intoxicating liquors 13, 132-Eighteenth Amendment and Volstead Act do not repeal state's license laws. The state law prohibiting the sale without a license of intoxicating liquors for any purpose was not so repugnant to Const. U. S. Amend. 18, or the Volstead National Prohibition Act, which prohibited the sale of intoxicating liquors for beverage purposes, that the state law was entirely repealed by the federal law, even though a state prohibition act would have indicated a state policy inconsistent with the state license law. 2. Statutes 64(1)—Legislative intent in determining validity of one part of statute as dependent on validity of another part relates to conditions existing at time of passage. The legislative intent, which is important in determining the validity of one part of the statute as dependent upon the validity of another part, relates to conditions as they existed at the time of the passage of the statute, so that if a statute is valid at the time of its enactment, but subsequent conditions make an enforcement of the part thereof impossible, the question is not what the Legislature would have done if they could have foreseen the situation, but whether the remaining part "An acceptance, to be effectual, must be iden- of the statute can be enforced without doing tical with the offer and unconditional. Where violence to the purpose of the whole act. And on page 267 of the same volume it is said: (113 A.) 3. Statutes 159-Later act Impliedly repeals earlier only to extent of repugnancy. Where there are two acts on the same subject, effect is to be given to both if possible, and if they are repugnant in their provisions the latter act operates as an implied repeal of the first only to the extent of the repugnancy. Appeal from Criminal Court of Baltimore City; James P. Gorter, Judge. Bernard Ulman and another were indicted in Baltimore City for selling intoxicating liquor without a license. Demurrer to the indictment overruled and demurrers to the special pleas sustained, and defendants appeal. Affirmed. Argued before BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. that the liquor laws applicable to Baltimore City were not valid at the time of their passage, or that they have been repealed either expressly or by implication by any later statute of this state; but that they have been abrogated or nullified by the Eighteenth Amendment to the Constitution of the United States and the act of Congress known as the Volstead Act. If this is so, it must be because the statute in question is repugnant in all its parts to the said amendment and act of Congress, or at least to such an extent that when the repugnant provisions are eliminated the remaining parts of the act do not carry out any of the purposes for which the law was enacted. It certainly cannot be because of any exclusive jurisdiction assumed by the federal government under the amendment, for the amendment expressly provides for concurrent action. For the purpose of William Curran, of Baltimore, for appel- this case it is not necessary to decide whether lants. Alexander Armstrong, Atty. Gen. (Lindsay C. Spencer, Asst. Atty. Gen., and Robert F. Leach, Jr., State's Atty., of Baltimore, on the brief), for the State. ADKINS, J. The appellants were indicted in Baltimore City for selling intoxicating liquor without a license. They demurred to this indictment, and the demurrer was overruled, whereupon they filed two special pleas in which respectively they admit that on May 8, 1920, they sold 50 pints of whisky to Lipman Kiewe, and 50 pints to Jacob Legum "for nonbeverage purposes, to wit, for medicinal purposes"; that at the time of the said sale they were duly permitted and authorized by permit, issued by John F. Kramer, United States Commissioner of Prohibition, under the National Prohibition Act (41 Stat. 305) and Regulations issued thereunder, to sell intoxicating liquors for other than beverage purposes to others holding permits, which confer authority to purchase and use intoxicating liquors for nonbeverage purposes; that the said Lipman Kiewe and Jacob Legum then and there held said permits; that the said defendants acted under such permits issued as aforesaid to them, and all provisions of the National Prohibition Act and Regulations issued thereunder were then and there strictly observed. To each of which pleas the state demurred, and the demurrers were sustained. This appeal is from the rulings of the trial court on the respective demurrers. the prohibition feature of the Maryland license law would now be enforceable if the Eighteenth Amendment had prohibited the sale of intoxicating liquor for every purpose. In passing, however, it is to be noted that it has been held in at least four states that a later local option law prohibiting the sale of intoxicating liquor in one of the counties of a state does not prevent prosecution for violation of an earlier law prohibiting sale without license. Com. v. Barbour, 121 Ky. 463, 89 S. W. 479, 3 L. R. A. (N. S.) 620; State v. Smiley, 101 N. C. 709, 7 S. E. 904; Webster v. Com., 89 Va. 154, 15 S. E. 513; State v. Swanson, 85 Minn. 112, 88 N. W. 416. See, also, 23 Cyc. p. 120. [1, 2] We have here to deal with the federal Constitution and an act of Congress which permit the sale of intoxicating liquors for nonbeverage purposes, and a state law which prohibits the sale of such liquors without a license for any purpose. Certainly there is no conflict so far as the state law applies to sales for nonbeverage purposes. Because it permitted the license of sales for beverage purposes also when such sales were not prohibited by the federal Constitution, and because such licenses can no longer be issued, it does not follow that the whole law has been abrogated. On the contrary, it is not unreasonable to suppose the Legislature would have enacted laws regulating the liquor business and providing for a revenue from such sales as would have been permissible if the Eighteenth Amendment had then been in force. One of the ways of exercisIt is unnecessary to set out the counts in ing control over the business by the state and the indictment, as the demurrer to the in- preventing clandestine and illegal sales dictment is based, not on the form of the in- would be to enforce the prohibition feature dictment, but on the general proposition that of the existing license laws, the effect of there is not now, and was not at the time which would be to punish every one selling of the alleged offenses, any enforceable law without a license whether for beverage or in Maryland prohibiting the sale of intoxicat- nonbeverage purposes. The inhibition being ing liquor in Baltimore City without a state against any sale without a license, all sales license. The contention of appellants is, notare covered, both those permitted and those prohibited by the Eighteenth Amendment. state; and the question of a change of state But even if it were probable that the Legislature of Maryland would not have enacted the existing liquor license laws or any part of them if it could have foreseen the adoption of the Eighteenth Amendment, that could not be taken into consideration in determining the question now before us. Doubtless many statutes would not be enacted if happenings of the future could be foreseen. policy may easily be involved. In the case at bar a very different question is presented. Here there is no question of repeal by implication, or of the establishment of a new system or policy by the state. But the sole question is: Is there anything in the Eighteenth Amendment or the Volstead Act to which the provisions of the Liquor License Law for Baltimore City, for the violation of which appellants were indicted, are repugnant? Com. v. Nickerson, supra. We hold that the law in question has not been abrogated so far as it prohibits in Baltimore City the sale of intoxicating liquor without a license, regardless of the purpose for which the liquor is sold. For the reasons above given, the judgment of the criminal court of Baltimore City in this case was affirmed by a per curiam order filed on the 2d day of December, 1920. (137 Md. 513) HINES, Director General of Railroads, v. (Court of Appeals of Maryland. Jan. 12, The legislative intent, which is important in reference to the dependence of the validity of one part of a statute upon the validity of another part, relates to conditions as they exist at the time of the passage of the statute, and not to those brought about by subsequent events. If a statute is valid in all its parts at the time of enactment, then if conditions subsequently arise which make enforcement of part of the statute impossible, the question becomes, not what the man who made the law would have done if they could have looked into the future, but whether the remaining part of the statute can be enforced without doing violence to the purpose of the whole act; in other words, whether any part of the purpose of the act can be subserved by the enforcement of such part of the statute as has not been nullified. Com. v. Nickerson, 236 Mass. 281, 128 N. E. 273. 1. Commerce 27(5) — Railroad messenger [3] On the question of repeal by implication the case of State v. Yewell, 63 Md. 120, cited by appellants, does not support their contention. On the contrary, the rule there announced is that where there are two acts on the same subject, effect is to be given to both if possible, and if they are repugnant in any of their provisions, the latter act operates to the extent of the repugnancy as a repeal of the first. That principle is recognized everywhere. Appeal Tax Ct. v. R. R. Co., 50 Md. 296; Smith v. School Commissioners, 81 Md. 516, 32 Atl. 193; Flood v. State, 103 Md. 692, 63 Atl. 684; Henderson's Tobacco, 11 Wall. 654, 20 L. Ed. 235; United States v. Tynen, 11 Wall. 92, 20 L. Ed. 153. Appellants cite a number of cases in support of the proposition that the adoption of -- carrying coal report held not engaged in “interstate commerce." A messenger employed by a railroad company all of whose trains were engaged in interstate commerce, killed while crossing the tracks to take to the station a coal report for transmission to the superintendent of the railroad in another state, was engaged in intrastate work clearly separable and distinguishable from interstate or foreign commerce within the Workmen's Compensation Law, § 33, and not engaged in interstate transportation or in work so closely related to it as to be practically a part of it, so that his dependents were entitled to compensation under the state law, and not required to bring suit for damages under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665). [Ed. Note.-For other definitions, see Words state constitutional prohibition operates as and Phrases, First and Second Series, Intera repeal of all license laws, and that no pros-state Commerce.] ecution can lie thereafter for the violation 2. Commerce 27 (5)-Work of employé in of the license law. The most that can be said for that is there are decisions both ways. Certainly the case of State v. Yewell, 63 Md. supra, cited in this connection, does not support that proposition, and a number of other cases are based on conditions that do not exist in the case at bar. See Prohibitory Amendment Cases, 24 Kan. 700. But whatever may be the weight of authority on that proposition, it is entirely different from the one here under consideration. In the one class of cases it is a question of state policy alone, and the conflicting statutory and constitional provisions are those of the same interstate commerce must have direct relation to operation or equipment of interstate trains. For a railroad employé to be employed in interstate commerce, his work must have a direct relation to the operation or equipment of interstate trains; it being insufficient that he is preparing supplies which are subsequently placed on interstate trains by other employés. 3. Commerce 27 (5)—Employé of railroad operating only interstate trains may be doing work separable from interstate commerce. The fact that all the trains of a railroad company were used for the purposes of inter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (113 A.) state traffic does not preclude employés of the road from being engaged in work clearly separable from interstate traffic within the meaning of Workmen's Compensation Law, § 33, which was obviously intended to limit the application of such law to classes of work for interstate carriers which were plainly not affected by federal legislation. Appeal from Circuit Court, Washington County; Robert R. Henderson, Judge. "To be officially reported." Application by Cena I. Baechtel and others to the State Industrial Accident Commission for compensation for the death of Charles Baechtel, an employé of the Cumberland Valley Railroad Company, opposed by Walker D. Hines, Director General of Railroads. The award of compensation by the Commission was affirmed by the circuit court, and Director General appeals. Affirmed. Argued before BOYD, C. J., and URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. Henry H. Keedy, Jr., of Hagerstown (Walter K. Sharpe, of Chambersburg, Pa., on the brief), for appellant. Elias B. Hartle and Charles D. Wagaman, both of Hagerstown, for appellees. [1] Upon the essential facts we have stated port" of the Norfolk & Western Railroad Company, and a coal report of the Cumberland Valley Railroad Company; the two companies having the use of the same track and station facilities at that point. The Roanoke, Va., and the coal report to Chamcrew report was to be sent by telegraph to bersburg, Pa., the former being a statement of Norfolk & Western crew vacancies for which extra men would be needed, and the latter a record of the quantity of coal available for the use of the Cumberland Valley engines. All of the trains operated on both railroads in Maryland pass also through other states, and are therefore used for the purment of Baechtel was solely in the service poses of intrastate commerce. The employof the Cumberland Valley Railroad Company. the inquiry is whether the errand on which Baechtel was proceeding at the time of the accident was "intrastate work" which is "clearly separable and distinguishable from interstate or foreign commerce," within the purview of the Workmen's Compensation Law (Code, art. 101, § 33), or whether he was then "engaged in interstate transportation, or in work so closely related to it as to be practically a part of it," according to the test applied by the Supreme Court of the United URNER, J. The dependent widow and States to questions of this nature. Shanks v. children of Charles Baechtel, an employé of D., L. & W. R. R. Co., 239 U. S. 556, 36 Sup. the Cumberland Valley Railroad Company, Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; who was killed in its service, made applica- Pedersen v. D., L. & W. R. Co., 229 U. S. tion to the State Industrial Accident Com- 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. mission for an award of compensation to be 1914C, 153; P., B. & W. R. R. Co. v. Smith, paid by the company under the provisions of 132 Md. 345, 103 Atl. 945, affirmed in 250 the Maryland Workmen's Compensation Law | U. S. 101, 39 Sup. Ct. 396, 63 L. Ed. 869. (3 Code Pub. Gen. Laws, art. 101). The claim While the trains of the Cumberland Valley was allowed after the Director General of Railroad Company were all employed in inRailroads had been made a defendant by terstate commerce, the company was also enreason of the fact that the Cumberland Val- gaged in intrastate transportation. It had a ley Railroad was under his control at the number of stations in this state between time of the accident and of the hearing be- which there was local traffic over its line. If, fore the Commission. On appeal to the cir- however, the duty which Baechtel was percuit court for Washington county the order forming should be held to be a part of the of the Commission was affirmed. The case operation of its trains, the conclusion would is before us on appeal from that judgment. inevitably follow that the service was interThe question to be determined, upon the state in its character because of the movement undisputed facts, is whether the service beyond the state for which every train was which Baechtel was performing when he was utilized. It could not be so classified, in view killed had such a relation to interstate com- of the special circumstances of the case, exmerce as to exclude the pending claim from cept upon the theory that it had a direct relaallowance under the Workmen's Compensa- tion to the operation of the trains. But that tion Law of this state. In the court below theory does not commend itself to our judg the case was tried without a jury on the tes- ment when we consider the real nature of timony taken before the State Industrial Ac- Baechtel's work in the light of the Supreme cident Commission and transmitted as part Court decisions which deal with analogous of the record on the appeal. It was proven cases. The service he was performing was that Baechtel was employed at the railroad that of a messenger. This was evidently one company's engine house at Hagerstown as of his customary duties. On the occasion of janitor, "handyman," storekeeper, and clerk, the accident he was carrying a message reand that he was struck by a locomotive while lating to the supply of coal at Hagerstown he was crossing the railroad tracks in the for the use of the company by which he was act of carrying some papers from the engine employed. The crew report of the Norfolk house to the telegraph office at the freight & Western Railroad Company which he also |