the employ of the Southern Car & Foundry | time. But stock in the treasury of the corCompany, at a salary of $4,000 a year, was acquiesced in voluntarily by him and the Standard Steel Car Company. "Conclusions of Law. poration is not capable of earning anything. Dividends may not be declared upon stock in the treasury of the corporation, and therefore, while this stock remained the property of the corporation, it could never be paid for "That the bill should be dismissed at the out of the earnings which it produced, or out cost of the complainant. "Opinion. of the dividends declared upon it. Unless, "The proposition made by Fraser to Gearhart is very vague. To quote the language of Gearhart: 'He stated that they would give me the same salary I was receiving, and set aside $25,000 worth of stock for me, to be paid for out of the earnings. Q. The earnings of the new company? A. Yes, sir.' It will be observed that there is no condition in this alleged contract as to the length of time that Gearhart was to be employed. He was to be the general manager of the company. He was to receive $7,500 a year the same that he was temporarily receiving from the Pressed Steel Car Company; but, under the conditions of the contract as he has stated them, "It is argued by counsel for the complainhe could have remained a year, or he could ant that, if this corporation could have issued have remained a month, and severed his con- fully paid-up stock to this complainant for nection with the Standard Steel Car Com- his labor, then it could enter into a contract pany, without breach of his agreement. He to issue to him for his labor capital stock of testified that Fraser's proposition was that the corporation, when it should be paid for the stock should be paid for out of the earn-out of the earnings of the company. But that ings of the company. It will be observed is just what the act of assembly says a corthat there is no specific condition of this con- poration may not do. It was not the purpose tract as to what proportion of the earnings of that this stock should be issued to the comthe company should be applied to the pay- plainant, and paid for with his labor. The ment of this stock. The testimony of Mr. stock was to be paid for by the corporation Shoen is that the proposition, as talked of itself, and was, therefore, a gratuity to the among the promoters, was that the stock was complainant. It was to prevent just such to be paid for out of the dividends, and pre- vague, uncertain, shifting agreements as this sumably, if that meant anything, it meant one purported to be that the Legislature of that it was to be paid for out of the dividends the state enacted, in such clear and specific declared upon this stock. A pertinent inquiry language, the consideration which a corporaarises here as to whom this stock belonged tion is bound to receive for the issue of its pending the fulfillment of the proposed con- stock. This is not a case where the corporatract made between Fraser and the complain- tion only is interested in declaring this supant. The stock assuredly was not the prop- posed contract illegal. The fictitious issuing erty of the complainant. He does not allege of corporate stock is a question of public polthat he had paid for the stock, or that he had icy. The Legislature has made it so, and given any obligation on his part to pay for while corporations have been held many times it. Under the law of Pennsylvania the stock to contracts that were ultra vires, when excould be issued to him only upon his paying ecuted by the other party, that is only in case for the same, either in cash, property, or where the corporation alone is interested, and labor, and he does not claim that either cash, not the public." property, or labor of his paid for this stock. Therefore the stock did not belong to him. And even now, in his prayer, he does not ask that the certificates of stock be issued to him, excepting on condition that it has been paid for out of the earnings of the company. If, then, the stock was not the property of the complainant, it must have been the property of the corporation. It must have been stock in the treasury of the corporation at that Argued before FELL, BROWN, MESTRE- Jarvis, for appellant. George B. Gordon and PER CURIAM. The decree is affirmed, at the cost of the appellant, on the opinion of the learned judge of the common pleas. to property. The intention to limit by Act April 2, 1903 (P. L. 124), the right of appeal to a party whose property had been taken, injured, or destroyed, or who was (223 Pa. 280) MURDOCH et al. v. CITY OF PITTSBURG. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. MUNICIPAL CORPORATIONS (§ 511*)-PUBLIC IMPROVEMENTS-ASSESSMENTS RIGHT TO AP-assessed benefits to pay damages for prop PEAL. Act April 2, 1903, § 2 (P. L. 126), in amendment of Act May 16, 1891, § 6 (P. L 77), making the report of viewers conclusive as to any assessment to pay the cost of any sewer, street, or other improvement, and giving the right of appeal to the common pleas to one whose property has been taken, injured, or destroyed, or who is assessed to pay for property taken, injured, or destroyed, limits the right of appeal to one whose property is taken, injured, or destroyed, or who is assessed to pay for property taken, injured, or destroyed, and there is no right of appeal from an assessment merely to cover the cost of the improvement. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 511.*] 2. MUNICIPAL CORPORATIONS (8 408*)-PUB- erty taken, injured, or destroyed, is clear. Section 6, Act May 16, 1891 (P. L. 75), had been construed in Tourison's Appeal, 171 Pa. 38, 32 Atl. 1122, and in Beechwood Avenue Sewer Cases, 179 Pa. 494, 36 Atl. 210, to give the right of appeal from assessments of benefits to pay in whole or in part damages sustained by another lot owner. Section 2 of the act of 1903, amending section 6 of the act of 1891, expressly provides that the report of viewers when confirmed "shall be conclusive as to any assessment made therein to pay the costs and expenses of any sewer, street or other improvement," and gives, as did the act of 1891, the right taken, injured, or destroyed, and extends of appeal to one whose property has been the right to one who is assessed for benefits to pay for damages for property taken, etc. Nor is the objection to the constitutionality of the amending section of the act well founded. In Oil City v. Oil City Boiler Works, 152 Pa. 348, 25 Atl. 549, it was said: "Assessments for the construction of sewers and original grading and paving of streets, etc., have always been regarded as a species of taxation which, within welldefined limits, is constitutional and proper, without provision for such appeal from the action of those intrusted with the duty of making and revising assessments." The principle is too firmly settled by a long line of cases, including Hammett v. Philadelphia, 65 Pa. 146, 3 Am. Rep. 615, Michener v. Phila., 118 Pa. 535, 12 Atl. 174, and on down to Harrisburg v. Segelbaum, 151 Pa. 172, 24 Appeal from Court of Common Pleas, Al- Atl. 1070, 20 L. R. A. 834, to be now shaken. legheny County. Act April 2, 1903, § 2 (P. L. 126), in amendment of Act May 16, 1891, § 6 (P. L. 77), making the report of viewers conclusive where the assessment of benefits covers only the cost of a sewer, street, or other improvement, is constitutional. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1183; Dec. Dig. § 408.*] 3. MUNICIPAL CORPORATIONS (§ 408*) — PUBLIC IMPROVEMENTS-ASSESSMENTS-RIGHT TO APPEAL. Assessments for the construction of sewers and original grading and paving of streets have always been regarded as a species of taxation which, within well-defined limits, is constitutional and proper, without provision for appeal from the action of those intrusted with the duty of making and revising assessments. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1183; Dec. Dig. § 408.*] Lydia A. Murdoch and others appealed to the court of common pleas from an assessment by viewers to pay the costs and expenses of grading, paving, and curbing a street in the City of Pittsburg, and, from an order dismissing the appeal, they appeal. Affirmed. Argued before FELL, BROWN, MESTRE ZAT, POTTER, ELKIN, and STEWART, JJ. J. M. Shields, Allan B. Angney, and McKenna & McKenna, for appellants. A. M. Thompson, W. B. Rodgers, and Lee C. Beatty, for appellee. See, also, the carefully considered opinion appellant. (223 Pa. 283) MURDOCH et al. v. CITY OF PITTSBURG. (Supreme Court of Pennsylvania. Jan. 4, 1909.) 1. MUNICIPAL CORPORATIONS (§ 511*) — PUBLIC IMPROVEMENTS-ASSESSMENTS-RIGHT TO APPEAL. where the assessment of benefits covers only the No appeal lies from a report of viewers, cost of the improvement, and no property is taken, injured, or destroyed, or assessment of benefits made to pay for property taken, injured, or destroyed. Corporations, Cent. Dig. § 1183; Dec. Dig. [Ed. Note.-For other cases, see Municipal § 511.*] PER CURIAM. The question raised by these appeals relates to the right of appeal to the common pleas from an assessment by viewers to pay the costs and expenses of grading, paving, and curbing a street. It appeared from the record that the assessment was for this purpose only, that no property had been injured or destroyed, and viewers assessing benefits to pay the cost of Exceptions will not lie to the report of that no claim had been made for damages' grading, paving, and curbing a street, where no 2. MUNICIPAL CORPORATIONS (§ 497*) — PUBLIC IMPROVEMENTS — - ASSESSMENTS -EXCEPTIONS. question is raised as to the liability to assess-ly possible that the law contemplates that ment, nor the regularity of the proceedings, nor the court shall sit as a board of viewers upthe action of the viewers in any way, except that they erred in judgment in determining the on the question as to the amount and charamount of benefits. acter of the benefits which abutting property has sustained because of a public improvement. It would require that the court should sit as viewers, and that in order to properly [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 8 1168; Dec. Dig. 8 497.*] Appeal from Court of Common Pleas, Alle- dispose of the matter the court should view gheny County. Lydia A. Murdoch and others filed exceptions to the report of viewers assessing benefits to pay the cost of grading, paving, and curbing a street in the City of Pittsburg, and, from an order dismissing the same, they appeal. Affirmed. Evans, J., filed the following opinion in the court below: "This cause comes on to be heard on exceptions to a viewers' report, appointed for the purpose of assessing benefits and awarding damages for the grading, paving, and curbing of Darlington road. the premises, because no person can have a proper understanding of the effect of a public improvement upon abutting properties without going upon the premises and viewing the improvement. Certainly the law did not intend that this burden should be put upon the court. "But it is argued by the exceptant that the court in its judgment could refer this back to the same or another board of viewers. It is probable that under the provisions of the act of 1891, if the conduct of the viewers was so far wrong that the court might reasonably infer that their assessment was fraudulent, it would be the duty of the court to refer the case to another board of viewers; but experience has taught us that the great majority of persons assessed benefits for the payment of the cost of public improvements are clearly of the opinion that their property has been assessed too high, and if in every case of exception we are to appoint a commissioner to take testimony, as requested in this case, and either pass upon the question of the amount of the assessment or refer it back to another board of viewers, it is going to place upon the courts a burden which we think the law did not contemplate. It will be observed that the costs and expenses of these views are paid' by the municipality. There is therefore no check upon exceptants by reason of the fact that a failure to sustain their position might mulct them in costs. "The exceptions are dismissed." "By the report of the board of viewers, it appears that the assessment of benefits was made to cover only the cost of the improvement, that no property was taken, injured, or destroyed, and that no assessment of benefits was made to pay the damages for property taken, injured, or destroyed. There fore, under the rulings of the court in Brackney v. Crafton Borough, 31 Pa. Super. Ct. 413, no appeal would lie from the report of the viewers. The exceptions filed go simply to the question of the amount of benefits which should be assessed against the exceptant's property. There is no question as to whether the viewers proceeded upon a proper legal basis in making the report. There is no error in the law on the part of the board of viewers alleged. The exceptions raise simply a question of fact, namely, was the property benefited to the extent of the amount assessed against it by the viewers? And this raises the question as to whether, under such circumstances, where there is no complaint made as to the actions of the board of viewers, except that it erred in 'judgment in determining the question of fact as to the amount of benefits which the prop-ty, for appellee. erty sustained by reason of the improvement, exceptions would lie to such a mistake on the part of the board of viewers. The question is not without some difficulty, because in view of the fact that the amendment of the act of 1891 (P. L. 75) by the act of April 2, 1903 (P. L. 124), takes away in such cases as this the right to appeal to a jury, and the denial of the property holder of the right to file exceptions and have a review of the finding of the board of viewers by the court would make, in such cases as this, the judgment of the board of viewers final and conclusive upon the parties. And yet it is hard Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ. J. M. Shields, Allan B. Angney, and McKenna & McKenna, for appellants. A. M. Thompson, W. B. Rodgers, and Lee C. Beat PER CURIAM. These appeals are from orders dismissing exceptions to the report of viewers assessing benefits to pay for the costs and expenses of grading, paving, and curbing a city street. The exceptions did not question the liability to assessment, nor the regularity of the proceedings, nor the action of the viewers in any way, except that they erred in judgment in determining the amount of benefits. The appeals are dismissed, and the orders are affirmed on the opinion of Judge Evans. For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes (223 Pa. 377) through the bank when it is due. She feels, GUARANTEE TITLE & TRUST CO. v. GIL too, that in bringing this about she will LESPIE et al. (Supreme Court of Pennsylvania. Jan. 4, 1909.) PRINCIPAL AND AGENT (§ 106*)-AUTHORITY OF AGENT-CONSTRUCTION. A mother wrote to her son offering to sell her stock in a corporation for a certain amount, and authorizing him to deposit the proceeds of such sale at 4 per cent. interest in any bank that would aid him in making the sale. 'Held to give no authority to the son, as agent, to contract with a bank to leave her money on deposit until the loan made to the son by the bank was paid and as collateral therefor. [Ed. Note. For other cases, see Principal and Agent, Dec. Dig. § 106.*] greatly relieve you and her of countless worries incident to long and frequent correspondence concerning details of the business.' "(3) On the receipt of this letter, Alan K. Gillespie went over its contents with the other defendant, W. F. Brown, whom he desired to interest in the purchase of this additional stock. As a result of the letter and his agreement with Brown, he entered into negotiations with the plaintiff company, a trust company doing a banking business in the city of Pittsburg, through its vice president, R. J. Davidson, and F. W. Brown, an Appeal from Court of Common Pleas, Al- employé and brother of the defendant W. F. legheny County. Bill by the Guarantee Title & Trust Com pany against Alan K. Gillespie and others. From a decree dismissing the bill, plaintiff appeals. Affirmed. MILLER, J. in the court below, filed the following findings of fact and conclusions of law: "Findings of Fact. "(1) Alan K. Gillespie was the vice president, treasurer, and a director in the Gillespie-Curll Company, a corporation doing business in the city of Pittsburg. W. F. Brown was an employé and stockholder in said company. Mrs. Gillespie was the holder of 325 shares therein, and in addition had large claims against her son for money advanced to him. She desired to dispose of her stock, and in connection therewith to adjust her claims against her son, and had submitted to him in pursuance thereof the proposition contained in the next finding. "(2) By letter dated April 5, 1907, written by C. F. Evans, a banker in Wilmington, N. C., a son-in-law of Mrs. Gillespie, and with whom she was then staying, and who was acting in her behalf, appears, after a number of references to the condition of her health, inter alia, the following: 'I told her that I thought she should make a proposition to take over her entire interest including the $11,000 of stock held as collateral against your note and to make this proposition upon such a liberal basis that you should have no difficulty in financing the deal through your banking friends and making a quick turn of the whole transaction. In brief, I suggested that she offer to you $42,500 which includes the note as you know on a basis of $75.00 per share for the stock, which would mean a bonus to you of say $10,875, and that she then agrees to place the funds in any bank or banks which may aid you in the deal, thus furnishing you quite a good argument to them in case one be needed. They would pay her four per cent. upon the deposit. Of course she has no need for the money. All she wants is to be free of any other details than the simple act of drawing her interest Brown, that it should loan to them $25,000, taking as collateral security these 325 shares of stock in the Gillespie-Curll Company to be purchased with his 30 additional shares, that the amount of the loan should be deposited in the savings department of the plaintiff company to the credit of Mrs. Gillespie, and that the deposit should remain there as col lateral security for the loan until it was paid. "(4) On or about April 11, 1907, this was carried into effect. A demand note for $25,000 with said stock as collateral, to the order of said Brown, signed by said Gillespie, and indorsed by Brown, was delivered to plaintiff's bank. It handed to Gillespie a duplicate deposit slip to the credit of Mrs. Gillespie's savings account in the said sum of $25,000, which slip he at once mailed to his mother. On her return to Pittsburg this deposit slip was returned to the plaintiff, and a savings book was given in lieu thereof, with the entry of $25,000 to the credit of Mrs. Gillespie as of the date of April 13, 1907. This book contains certain regulations, among others providing that interest should be paid semiannually on the deposit, and that no portion thereof nor the whole could be withdrawn without certain notices therein specified. Mrs. Gillespie did not know at that time that Brown was interested in the purchase or had entered into the negotiations with the plaintiff company. "(5) The shares of stock in the GillespieCurll Company, collateral for the payment of said notes now in the possession of the plaintiff, are not the identical shares belonging to Mrs. Gillespie. 325 shares of the total number were issued by the Gillespie-Curl Company to Alan K. Gillespie with the knowledge and consent of the plaintiff company and without the knowledge of Mrs. Gillespie, and the shares belonging to her when received by Alan K. Gillespie were taken up and canceled by the Gillespie-Curll Company. "(6) At the time the loan was negotiated, Alan K. Gillespie at the request of the plaintiff made a financial statement of the condition of the Gillespie-Curl Company showing assets over liabilities of $7,234, exclusive of the capital stock $75,000 paid in. Later, in November, the plaintiff, ascertaining that Alan K. Gillespie's financial statement was not true, and before Mrs. Gillespie refused to make an agreement pledging her deposit as collateral, demanded and obtained from Alan K. Gillespie, 1,125 shares of the capital stock of the Elizabeth Ice Company as further security for said loan. "(7) Shortly after the loan was obtained in April, the plaintiff prepared a form of agreement for Mrs. Gillespie's execution, providing for the pledging of her deposit in accordance with the representations made by her son. It made frequent requests for this paper. Alan K. Gillespie agreed to forward it to his mother for execution; she being then in Europe. There is no evidence that she ever received it. In November, 1907, a similar paper was presented to her in Uniontown, Pa., by her son, Alan K. Gillespie, and F. W. Brown of the plaintiff company, for execution. She said it was the first time she ever heard of such alleged arrangements and declined to execute the paper. "(8) Shortly after her refusal to execute the paper submitted to her or to be bound by the promise made by her son, the plaintiff gave notice of its rescission of said contract, electing to retain Mrs. Gillespie's deposit in payment of said loan. The plaintiff has in its possession the said note and all the collateral. Alan K. Gillespie paid the interest on said note quarterly as demanded to January 1, 1908, when the plaintiff company declined to receive further interest. Mrs. Ada R. Gillespie has not been credited with, nor has she received, any interest on her deposit made April 13th. "(9) The letter from Evans, acting for Mrs. Gillespie, to Alan K. Gillespie, contained no authority, expressed or implied, to make any agreement whereby her money should remain on deposit with the plaintiff company until the note was paid and as se.curity therefor. "Conclusions of Law. "(1) Alan K. Gillespie was not the agent of his mother, Ada R. Gillespie, with authority to bind her to leave the deposit of $25,000 in the plaintiff's bank until the GillespieBrown note was paid and as security therefor, and she is not bound by any representations he made or any conditions he attached to the deposit. "(2) The agreement set up by plaintiff company between it and Alan K. Gillespie, not being authorized by Ada R. Gillespie as to the pledging of her savings account for the payment of the loan, and not being within the scope of the authority contained in Evans' letter to Gillespie, or any other authority shown in this case, is insufficient in law and equity to hold her money liable for the payment of the note, or to warrant the plaintiff in rescinding the transaction and attempting to cancel on its books the credit of $25,000 to Mrs. Gillespie's account. "(3) The only contract existing between Ada R. Gillespie and the plaintiff is that contained in the regulations governing her deposit, which, as said before, provided, inter alia, that the plaintiff shall pay her 4 per cent. interest semiannually in January and July, and that certain notices must be given before she can withdraw her money or any portion thereof. "(4) Even if an implied contract has been made out binding Mrs. Gillespie, as contended for by the plaintiff, it could not rescind, having made no demand upon either Gillespie or Brown for the payment of the note, nor offering to pay Mrs. Gillespie any interest on her deposit or credit it with the same, or offering to refund the interest paid on the loan to Gillespie and Brown, and because, having not demanded payment of the loan, it has refused to receive the interest due as tendered by the obligors. "(5) It follows that the plaintiff's bill shall be dismissed, at its cost." Argued before FELL, BROWN, MESTRE ZAT, POTTER, and ELKIN, JJ. A. Leo Weil, C. M. Thorp, and H. D. Montgomery, for appellant. John S. Ferguson, for appellees. PER CURIAM. The decree is affirmed, at the cost of the appellant, on the findings of fact and the conclusions of law by Judge MILLER, specially presiding. |