State v. Mott. fendant operated his lime kiln within the limits of the city, contrary to the terms of the ordinance, which absolutely prohibits the operation of any lime kiln, without reference to its local surroundings, within the limits of the city after a certain date. The defendant demurred to the indictment, as it was his right to do, and thereby admitted the fact that he had operated his lime kiln as charged. Indeed he was reduced to the alternative of either denying the fact that he had operated his lime kiln after the time designated in the ordinance, or taking issue in law as to the validity of the ordinance. He made the latter issue, and that presented the question, whether or not it was competent to the mayor and city council, by ordinance, under the authority delegated to them, to prohibit absolutely, without condition or qualification, the burning of lime within the limits of the city of Baltimore. Now it is well known and understood, that the burning of lime is not an unlawful business or trade, and is not a nuisance in its nature per se, irrespective of the location. On the contrary, it is one of a multitude of most useful and necessary processes for the benefit of society and for its material improvement, but which may, from mere local conditions, become nuisances. Or as said in Aldred's case, 9 Co. 59 a, "the building of a lime kiln is good and profitable; but if it be built so near a house that when it burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it." But neither in the ordinance, nor in the indictment founded thereon, is there any thing apparent that justifies the conclusion that all the lime kilns within the limits of the city, and which have been prohibited operation, are in fact nuisances. And not being nuisances in their nature, irrespective of their local surroundings, it is very clear that there has been no authority conferred upon the mayor and city council to make them nuisances, either to health, comfort or property, by simply declaring them so. In the absence of such express authority, the principle is too well settled to require the citation of authorities for its support, that a particular use of property declared a nuisance by an ordinance of a municipal corporation does not make such use a nuisance, unless it be so in fact, according to the common-law or statutory definition of nuisance. The ordinance in question however does not in terms declare lime kilns within the limits of the city nuisances. It simply prohibits their operation altogether, but upon what particular ground does not State v. Mott. distinctly appear. But the provision in the charter only confers authority "to prevent and remove nuisances; and the mere possibility that all the lime-kilns within the limits of the city may in the future become nuisances does not justify the city in prohibiting the business entirely in anticipation. Upon any such principle of action by the city, many of the most valuable and indispensable trades might be stopped. Whether a particular lime-kiln is a nuisance or not is a mixed question of law and of fact; and an indictment for maintaining such kiln as a nuisance should charge the facts necessary to bring it within the definition of a nuisance, or at least within the power conferred by the statute to suppress it. Here the power conferred by the statute, and attempted to be executed by the general prohibitory ordinance, cannot be taken to authorize the extra-judicial condemnation and destruction of that as a nuisance, which in its nature, situation or use, is not or may not be such. 1 Dill. Mun. Corp. (3d ed.), § 374, and the cases there cited; Wood Nuis., § 740. To have adjudged the indictment good would have required the court to assume that all the lime-kilns within the limits of the city were nuisances per se, without regard to their location, or that they were allowed by the statute to be condemned unconditionally. This the court would not have been justified in doing as matter of law; nor would the court have been justified in assuming that all such lime-kilns would necessarily become nuisances, and were therefore subject to the power of prevention. In the case of Glenn v. Mayor, etc., of Baltimore, 5 Gill & Johns. 429, this court, in speaking of the power of city authorities to abate nuisances, said: "Thus, whether the various manufactories spoken of in the 17th section of the ordinance are calculated to endanger the habitations or the health of the inhabitants, may be a matter of science, upon which possibly a diversity of views might be entertained, and thus the legitimate exercise of the power might become a mixed question of law and of fact. The city authorities might pronounce that to be a nuisance which evidence might show was not a nuisance. They might prohibit a particular occupation upon the ground that it increased the danger of fire, when the reverse could be shown by the concurring testimony of all men. The power therefore or the want of power to suppress a particular occupation as a nuisance, or as a means of preventing fire, should be shown in proof." And if required to be shown in proof, upon State v. Mott. every principle, in a criminal proceeding, should the facts to constitute the crime be alleged in the indictment. The party proceeded against should have the liberty and the opportunity to controvert the facts. He is not to be concluded on the question of power, simply by the action of the city authorities in the adoption of the ordinance. Nor can the ordinance in question be sustained under that clause of the section of the charter before recited, which authorizes the city to "regulate the places for manufacturing soap and candles, etc., and where every other offensive trade is carried on." That power assumes the existence of such trade, and that they may be carried on within the limits of the city. The power delegated is simply to regulate the places where they are carried on, and not to forbid their being carried on, or to destroy them altogether. It is assumed in the power granted that such trades will not be carried on under such condition of things as to constitute them nuisances, and thus bring them within the scope of the general power to prevent or remove nuisances; but that they will be carried on at proper places, subject to the regulating power of the city. And such being the case, it is well settled that a power simply to regulate does not embrace a power to prohibit or destroy a trade or occupation. 1 Dill. Mun. Corp. (3d ed.), § 325; Radecke's case, 49 Md. 217. If therefore lime-kilns be classed among the offensive trades, subject to have the places of their operation regulated by the city, they are not liable to be prohibited, unless they be nuisances in fact, according to legal definition. On the contrary, the very power of regulation is a full recognition of the legal right to maintain the kilns within the city, unless and until they become nuisances in fact. Upon the whole, we are of opinion that the ordinance No. 113, designated as section 434 in article 23 of the Baltimore City Code, is void for the reasons we have stated; and consequently the demurrer to the indictment, founded upon such ordinance, was properly sustained by the court below, and we must therefore affirm the judgment. Judgment affirmed. A bill of merchandise, containing the buyer's name and a statement of the items and prices, but not signed, is not a memorandum within the statute of frauds.* Goods being sold on credit, and shipped to the buyer, and he becoming insolvent subsequent to the sale, but the goods not being stopped in transit, title vests in his assignee on delivery. ROVER. The opinion states the case. The plaintiff had judgment below. TRO Frank Gosnell, for appellant. Wm. Reynolds, for appellee. ROBINSON, J. On the 18th of September, 1882, T. Francis Hall, trading as T. Francis Hall & Co., ordered through one Richards, salesman for the appellee, a bill of merchandise, amounting to $364. The goods were sold on a credit of sixty days, to be delivered in Baltimore. At the time the order was given, the following memorandum in writing was made by Richards. "T. F. Hall & Co., 88 South Charles street, Baltimore, Maryland." Then follows an itemized statement of the goods thus ordered and the prices agreed to be paid for the same. Richards says the memorandum was made in order that the appellee might fill the order, and for no other purpose. It was neither signed by him nor by Hall. On the same day Richards mailed the order directed to the appellee at Providence, Rhode Island, by whom it was received on the 19th of September. On the 20th of September, Hall made an assignment to the appellant of all his property, rights and credits for the benefit of his creditors. On the 22d of September the appellee shipped the goods in controversy by express, consigned to T. Francis Hall & Co., 88 South Charles street, Baltimore, and on the 25th of September the appellant, being notified by the express company of their arrival, he directed the goods to be delivered to Higgins, Cobb & Co., auctioneers, by whom they were * See 47 Am. Rep. 529, note. McElroy v. Seery. sold, together with the stock in trade of Hall & Co., at auction. During the month of October, 1882, the appellant notified the appellee of the assignment to him from Hall & Co., and requested him to forward,his claim; and on the 31st of October the appellee directed his book-keeper to make up and forward a statement of his claim, which was accordingly done and was received by the appellant about the 1st of November. The appellee subsequently sued the appellant in trover to recover the value of the goods. Two questions arise in this case: First. Was there a note or memorandum in writing of the contract of sale within the 17th section of the statute of frauds? By the common law, all that was required to give validity to a sale of personal property, whatever may have been the amount or value, was the mutual assent of the parties to the contract. This once established by evidence, either verbal or written, that the one should transfer the absolute property in the thing to the other for a money price, the contract was completely proven and binding on both parties. To prevent frauds and perjuries however the 17th section of the statute of frauds provided that no contract for the sale of goods, etc., of the value of ten pounds or upward should be valid, except the buyer shall receive and accept part of the goods so sold, or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged or their agents thereunto lawfully authorized. It is essential therefore that the written memorandum should show who are the contracting persons. Not only who is the person to be charged, but also who is the person in whose favor he is charged, for it takes two to make a bargain. This was expressly so decided in Champion v. Plummer, 4 Bos. & Pul. 252, where the plaintiff by his agent wrote down in a memorandum book the terms. of a verbal sale to him by the defendant, and the defendant signed the writing, but the words were simply "bought of W. Plummer, etc.," with no name of the person who bought. Sir JAMES MANSFIELD, C. J., said: "How can that be said to be a contract, or memorandum of a contract, which does not state who are the contracting parties? By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other person as well as to the plaintiffs." And again in Allen v. Bennet, 3 Taunt. 169, the agreement was written in a book belonging to the plaintiff |