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(204 Pa. 588)

ger, and B. J. Stenger and Mary A. Stenger, RALSTON et al. v. IHMSEN et al.

executors of the estate of Robert Cunning(Supreme Court of Pennsylvania. Jan. 5,

ham, deceased, have selected C. Frederick 1903.)

Leng, of the city of Pittsburg, aforesaid, as SPECIFIC PERFORMANCE-UNCERTAIN DAM

the other arbitrator or referee; the said D. AGES-DEATH OF PARTNER--PURCHASE OF C. Snyder and C. Frederick Leng to proceed INTEREST-ARBITRATION-FINDING.

at once to determine the value of the interest 1. Wbere damages at law are an insufficient remedy for breach of contract, because there is

of the said Thomas 0. Ihmsen, deceased, in something peculiar in the subject of the con said real estate and all copartnership assets tract, that cannot be represented by damages, of Cunninghams & Company and Cunningand such damages are uncertain, a specific per

hams & Company, Limited. But in case said formance of the contract will be decreed.

2. Specific performance of a contract by the D. C. Snyder and C. Frederick Leng cannot administrators of a. deceased partner to sell his agree between themselves as to the value interest to the surviving partners in a glass thereof, then they shall call in a third party manufacturing business will be decreed, where the interest of the decedent was of specific

to be mutually chosen by them to act with value to the purchasers, as enabling them to them as an arbitrator or referee in said matcontinue without interruption a business to ter. And it is mutually agreed and underwhich they had contributed most of the capital. 3. The jurisdiction to enforce the specific per

stood that the award in writing of the said formance of a contract by the administrators of

arbitrators or referees, or any two of them, a deceased partner to sell bis interest in the shall be final and conclusive as to the value business to the surviving partners is in the court of the interest of said Thomas 0. Ihmsen, of common pleas, and not the probate court. 4. An agreement for the sale of the interest

deceased, in the said firm of Cunninghams & of a deceased partner to his surviving partners

Company, Cunninghams & Company, Limitprovided that the value thereof should be de ed, and said real estate and on any matter or termined by two referees, who, on disagreement,

thing touching or concerning the interest of should choose a third. and that their finding, or that of two of them, should be conclusive. Held,

said Thomas 0. Ihmsen, deceased, therein; that where two of the referees originally chosen and each and every of said parties to this agreed on the value of all the property, except agreement do hereby waive any right of accertain furnaces and ovens, and chose a third

tion, suit or suits or other remedy at law or referee, who, as an expert, valued them, and accepted the valuation of the original referees as

otherwise touching the interest of said Thomto the other property, a finding by such third as 0. Ihmsen in said copartnership or partreferee and one of the others as to the value of

nership association, so that the decision of all the property was sufficient.

said arbitrators or referees, or any two of Appeal from Court of Common Pleas, Al them, shall be in the nature of an award in legheny County.

writing, final and conclusive as determining Bill by John Ralston and others against the value of the interest of said Thomas 0. Herbert L. Ihmsen and others, administrators Ihmsen aforesaid. of Thomas 0. Ihmsen, deceased. Decree for “And immediately after the value of said plaintiffs, and defendants appeal. Affirmed. interest is fixed and determined by said ar

Bill in equity for specific performance of bitrators, or any two of them, and on the an agreement to sell the interest of decedent payment of the amount thereof to them, the in a business conducted by the plaintiffs and

said Herbert L. Ihmsen and D. 0. Ihmsen, decedent as partners. The agreement was as

administrators as aforesaid, covenant and follows:

agree that they will, at their own proper cost “Now, therefore, this agreement witnesseth, and charges, grant, convey and assure unto that we, Herbert L. Ihmsen and D. 0. Ihm. the other parties to this agreement, all of the sen, administrators of the estate of Thomas interest of the said Thomas 0. Ihmsen, de0. Ihmsen, deceased, John Ralston, William ceased, in said copartnership property, real S. Cunningham, B. J. Stenger, and B. J. estate, and partnership association in such a Stenger and Mary A. Stenger, executors of

manner as will fully vest the title and ownerthe estate of Robert Cunningham, deceased,

ship thereof in said other parties.” do hereby agree to submit to arbitrators or

The referees named a valuation of all of referees without exception or appeal, the of the property, except the furnaces and question as to the value of the interest of ovens. They selected H. L. Dixon as a third Thomas 0. Ihmsen, deceased, in the partner- referee, and as one having expert knowledge sbip association of Cunninghams & Company,

of the value of furnaces and ovens. Dixon Limited, and the copartnership of Cunning accepted the valuation of the other property hams & Company and Cunninghams & Com made by the other two referees, and appraispany, Limited, to include all interest which ed the furnaces and ovens himself. His valusaid Thomas 0. Ihmsen's estate has or may

ation was accepted by Lane, but not by Snyhave in said real estate, leasehold and all of der. the copartnership assets of said firm or part

Argued before MITCHELL, DEAN, FELL, nership association, and for that purpose the

BROWN, MESTREZAT, and POTTER, JJ. said Herbert L. Ihmsen and D. 0. Ihmsen, L. C. Barton, for appellants. Levi Bird administrators as aforesaid, have selected D. Duff and L. B. D. Reese, for appellees. C. Snyder, of the city of Pittsburg, as one of the arbitrators or referees, and the said John FELL, J. The court had jurisdiction in Ralston, William S. Cunningham, B. J. Sten this case, and it was properly exercised in

had been an agreement as to these matters, which he was to accept, and that he was to assist in the appraisement of the remaining items only. He accepted the appraisement made, as far as it went, and it was not a subject of dispute. There was no revocation of the agreement of reference. The notice given by the appellants was not to the surviving partners, but to the third referee, objecting to his acting for the reasons stated—that he had not been chosen, and that there had been an adjournment because of the failure of the referees to agree. Neither of these reasons was valid, and the notice was without effect.

The decree is affirmed at the cost of the appellants.

AT;

granting the relief prayed for. The bill was to enforce the specific performance of a contract made by the administrators of a deceased partner to sell the interest of the decedent to the surviving partners at a price to be fixed by referees. The contract was not that of the decedent, but that of the ad. ministrators for the settlement of the partnership affairs by the statement of an account, the ascertainment of the interest of the deceased partner, and the sale thereof. The jurisdiction was in the common pleas, and not in the orphans' court. Wiley's Executors' Appeal, 84 Pa. 270; Miller's Estate, 136 Pa. 349, 20 Atl. 565. The value of the interest having been determined in the manner provided for, and payment tendered and refused, the plaintiffs were entitled to a decree for specific performance. The thing contracted for was an interest in a glass manufacturing business, nearly the whole value of which was in the plant and fixtures. The purchase was not with a view to the general profit, but because the interest was of peculiar and specific value to the purchasers, as the possession of it enabled them to continue without interruption a business to which they had contributed five-sixths of the capital. For the breach of this contract the law could furnish no complete remedy. The purchasers could be made whole only by the delivery of the thing bought. Specific performance of contract will be decreed on account of the damages at law being an insufficient remedy, where there is something peculiar in the subject of the contract, that cannot be represented by damages, and where the measure of damages at law is uncertain or unascertainable because of the contingent nature of the property. Notes to Cuddee v. Rutter, 1 White & T. Lead. Cases in Equity, 1094. Referring to the instances in which contracts relating to personalty will be specifically enforced because the damages in money cannot be ascertained, it is said in Bispham's Equity, § 370: “In short, an agreement will be enforced specifically in a court of equity where the specific thing or act contracted for, and not mere pecuniary compensation, is the redress practically required."

The referees chosen by the parties agreed upon the value of all the property of the firm, except the furnaces and ovens, of the value of which they had no knowledge. As provided by the agreement, they chose a third referee, who was an expert as to the value of these things, and the appraisement was completed, and an award made, which by the agreement was to be final and conclusive, as determining the value of the interest. The objection that all of the referees did not pass on the value of each item of property in estimating the value of the interest is without merit. The two appraisers selected by the parties agreed as to the value of certain items, and the third appraiser was selected with the understanding that there

(204 Pa. 572) DAUGHTERS OF AMERICAN REVOLU. TION OF ALLEGHENY COUNTY v.

SCHENLEY et al. (two cases). (Supreme Court of Pennsylvania. Jan. 5,

1903.) DEED-RESERVATION - CONSTRUCTION TORNEY IN FACT-RATIFICATION OF ACTS

-APPEAL-VACATING STREET. 1. An owner of land in a city conveyed a small lot in the midst of it, reserving the right to represent the property in all proceedings looking to the vacation of certain streets. Thereafter an attorney in fact of the grantor, under a letter authorizing him to lay out lots fronting on such streets and alleys as in his judgment might be deemed advisable, petitioned the council to vacate streets mentioned in the reservation in the deed without express authority of the grantor. Subsequently the owner ratified such act. Held, that the grantee could not question the authority of the owner's representative.

2. If, under a letter of attorney, such attorney had no right to petition for the vacation of certain streets, a subsequent ratification of his act by his principal was equivalent to precedent authority.

3. T'hough the appellate court cannot go outside of a record on an appeal from an order in a road case to ascertain if the finding of fact by the court below was correct, it can determine that the conclusion of the lower court on the facts as found was not warranted by law.

4. Under Act May 16, 1891 (P. L. 75), giving a right of appeal to abutting owners from ordinances opening, widening, extending, or otherwise improving any street, no appeal lies from the vacating of a street.

Appeal from Court of Common Pleas, Allegheny County.

Petitions by the Daughters of the Ameri. can Revolution of Allegheny County against Mary E. Schenley and others to quash ordinances to vacate Fort street and Point alley in the city of Pittsburg. From orders quashing such ordinances, defendants appeal. Reversed.

Shafer, J., filed the following opinion in the court below in the Fort street case:

“This is a proceeding under the act of May 16, 1891 (P. L. 75), to determine the sufficiency of the petition to the councils of the city of Pittsburg, upon which an ordinance was passed for the vacation of Fort street. Mrs. Mary E. Schenley is the owner of all

the land abutting on Fort street, except a lot macadamizing, and otherwise improving,' and which was some years ago conveyed by her may, therefore, be well interpreted to refer to the Daughters of the American Revolution, to improvements of a similar kind. Yet it is a corporation, for certain purposes, stated in also true that the vacation of streets is, in the deed, which deed created a base fee in the same act, more than once spoken of as that corporation. The deed of Mrs. Schenley an improvement, and the word 'improveto the corporation also contained a reserva ment' is used as a generic word, including tion to herself of the right to represent the not only the change of the physical nature of property described in the deed in a petition the street, rendering it more convenient than concerning the vacation of the street in ques- before, but also the opening, widening, extion, with a provision that, in case any dam- tending, and vacating of streets. This use ages should arise from the vacation, that she of the word in the act was not observed in should not be liable for the same, so far as the discussion in the Ebe Case. If the act concerned that property. Mrs. Schenley is a be interpreted to cover all the 'improvements' resident of England, and Mr. John W. Herron authorized and regulated by the act, includ. has a power of attorney from her, which is ing the vacation of streets, it will remove an of record in the recorder's office of Allegheny | apparent anomaly. It is not apparent why a county, whereby he is authorized to do for petition of a certain kind should be required her a considerable number of specific things. for all these improvements, and the deterSome time prior to the signing of the peti mination of the question whether the petition tion in question, Mrs. Schenley, by articles of is in fact of that kind should be different agreement, agreed to sell some or all of the in different cases. lands abutting on the street to Mr. F. F. “As to the standing of the appellants as Nicola. The petition was signed by Mr. owners of abutting lands, we think there can Nicola and by Mary E. Schenley, by her at be no doubt, as they have at least a base fee torney in fact, John W. Herron, and was in the lands, and, notwithstanding the resersworn to by each of them. At the time of vation in their deed, are liable for damages. the signing and presentation of the petition "That Mr. Herron's power of attorney is and the passage of the ordinance, Mrs. Schen not sufficient to authorize him to sign such ley had no knowledge of the transaction. a petition for Mrs. Schenley is, we think, Some time afterwards she heard of it, and very plain. We can find nothing in it which was satisfied with the action of Mr. Herron even approaches such a power. The eviin signing the petition.

dence is, however, that Mrs. Schenley after"The legal questions which appear to arise wards ratified his act. In transactions in on this state of facts are, first, whether the which the public is not concerned, and no act in question gives jurisdiction to this court third person's rights are involved, no doubt in the case of a vacation of a street to in the ratification would amount to a previous quire into the signing of the petition by a authority; but the power of councils to pass sufficient number of qualified petitioners; a valid ordinance depended on the petition, and, second, whether the plaintiffs have and it cannot be that the validity or invalidistanding to object to the petition; third, ty of the legislation can be made to depend whether the power of attorney of Mr. Her upon the subsequent action of a private perron authorizes him to sign such a petition, son at some indefinite time thereafter. If and, if not, whether the subsequent ratifica the petition was not sufficiently signed when tion of his signature by Mrs. Schenley will acted upon by councils, their action was wholcure the original want of power; and, fur- ly void, and cannot be brought to life by the ther, whether, in either event, the signature ratification of an act which was a prerequiof Mrs. Schenley's attorney in fact is suffi site to it. Neither do we understand how the cient to bind the Daughters of the American general conduct of Mrs. Schenley in not obRevolution in respect to their land, under the jecting to the previous acts of her represenreservation in their deed.

tative in regard to streets gives Mr. Herron "The question of jurisdiction, discussed to any greater authority. There might be somesome extent by this court in the case of Ebe's thing in it if it were not for the fact that he Appeal, reported in 31 Pitts. Leg. J. (N. S.) had a minutely specific power of attorney, 361, was one raised by the court, and not ar. and professed to act under it. Besides, it gued by counsel, and the case was decided does not appear that Mrs. Schenley had any upon other grounds. In that case we specific knowledge of the fact that her reprepressed an opinion that it is at least doubtful sentative had signed such petitions for her if the provisions of the tenth section of the at any time. act of May 16, 1891 (P. L. 75, 79), gave

an

"A further matter to be considered is what appeal to the court in the case of a petition is meant by the reservation of the deed of for the vacation of a street. The word 'va the right to 'represent the property' convey. cating does not appear in the section, and, if ed to the plaintiffs. The act calls for the a vacation is included in its provisions, it signatures of the abutting owners. Is Mrs. must be under the head of otherwise im- | Schenley to be deemed the abutting owner of proving.' It is true, on the one hand, that all the land, including that of the plaintiffs, the words appear to be taken from the eighth because she reserved the right to represent section, which speaks of 'grading, paving, the property in such a petition? We are of

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the opinion that the utmost she could be said to have is a power of attorney to represent the plaintiffs, irrevocable because coupled with an interest. If this be correct, she could not sign such a petition on behalf of the plaintiffs by an attorney in fact, there being no power of substitution in her own authority to act for them. We are clearly of opinion that the petition is not in fact signed by the requisite number required by the act.

“As to the question whether there is an appeal in the case of a petition for the vacation of a street, we think the law to be doubtful. If we hold the act to extend to the vacation of a street, and declare the ordinance invalid, there can be no doubt that an appeal will lie from such decision. From a contrary decision it is possible that no appeal would lie. We prefer, therefore, to resolve the doubt in favor of the petitioners.

It appearing to the court, therefore, that the ordinance in question was not petitioned for by the requisite majority in interest and number of the owners of property abutting on the line of the proposed improvement, the ordinance founded thereon is quashed; the costs to be paid by the city of Pittsburg."

Argued before MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

William W. Smith and T. D. Carnahan, City Sol.. for appellant. John Reed Scott, S. W. Childs, and J. H. White, for appellee.

DEAN, J. Mary E. Schenley, of London, England, is the owner of many pieces of land in and about the city of Pittsburg. One of these is what is known as the “Point Property," being about 972 acres, at the junction of the Allegheny and Monongahela rivers. It is bounded on the east by Third street, and on the north, west, and south by Duquesne Way and Penn avenue. On a part of this 942 acres is what is known as the "Blockhouse," an outpost of old Ft. Pitt. The fort itself has long since disappeared. The blockhouse is 20 by 30 feet and about 25 feet in height. Mrs. Schenley, by deed dated March 15, 1894, conveyed the blockhouse, with the tract of land 100 feet by 90, on which it stood, to the Daughters of the American Revolution, a patriotic corporation, for the nominal consideration of $1, stipulating, however, that if used for any other purpose than that of maintaining and preserving the blockhouse, it should revert to the grantor and her heirs; and, further, the grantor reserved the right to represent the property in all proceedings looking to the vacation of Fort or First street and 'Point alley. The significance and value of this reservation is indicated by a mere glance at the plot of the 912 acres—the 100 by 90 feet plot, about the middle of which stands the old blockhouse with 25 feet of clear space on every side of it. At its length, 100 feet, it extends a few feet over onto First street, and slightly over onto Point alley on the other side. All the

other part of the 912 acres is around and about it, and is the property of Mrs. Schenley. Of course, for the improvement of her other property by the opening or vacation of streets and alleys, it is of the highest importance that she should have an influential voice. If donee of the small blockhouse piece of land had the right of a landowner to obstruct public improvements in that locality, all her other land might be made less valuable. This was the situation in the fall of 1901, at which time Mrs. Schenley sought to improve the “Point” property, and to that end, desired the vacation of certain streets and alleys, so that the property would be eligible for the kind of improvements she contemplated. Thereupon petitions were presented to city co ncils to pass ordinances vacating two streets and two alleys running through the property; among them First street, or Fort street, and Point alley. These petitions were signed by Mrs. Schenley, by her attorney in fact, John W. Herron; also by Frank Nicola, who had an agreement with Mrs. Schenley to purchase part of the land. The petitions, on their face, thus represented the owners of every foot of property abutting on the streets to be vacated; that is, assuming that Mrs. Schenley, under the reservation in her deed to plaintiff, had authority to represent it in such proceedings. Ordinances vacating the streets were duly passed by councils, signed and approved by the city recorder, as required by law. The Daughters of the Revolution thereupon presented a petition to the court of common pleas, praying the court to quash the ordinances vacating Fort street and Point alley on the ground that John W. Herron had no authority from Mrs. Schenley to sign for her the petitions to vacate, and that, leaving her out as an owner of abutting property, the petition was not signed by a majority of the property owners in interest and number abutting on said streets. The court ordered no. tice to be served upon all of defendants to appear. All did appear by counsel, and denied the averment of fact in the petition, and further denied the jurisdiction of the court to entertain the appeal. The court, on hearing, found as a fact that Mr. Herron had no authority from Mrs. Schenley to sign the petition, and further affirmed its jurisdiction to entertain the appeal, and thereupon entered this decree: “It appearing to the court, therefore, that the ordinance in question was not petitioned for by the requisite majority in interest and number of the owners of property abutting on the line of the proposed improvements, the ordinance founded thereon is quashed.”

Leaving out of view for the present the question of jurisdiction, it is palpable, as concerns substantial merit, that the decree is founded on the baldest technicality. In the deed of Mrs. Schenley to the Daughters of the Revolution of the 190 feet and the blockhouse, after expressing the nature of

the gift as one for patriotic and historical sent. She only ratified the act of her agent, purposes, and her desire to aid and assist and her ratification of his act in signing the the Daughters of the Revolution in carrying petition, even if he had no authority when he out their patriotic purpose, she expressly stip- signed, was fully equivalent to precedent auulates as follows: "Subject to the right of thority. “The adoption of a contract made the party of the first part [Mrs. Schenley] to on our behalf by some one we did not aurepresent said above-described real estate in thorize is a ratification, and relates back to all proceedings looking to the opening of the execution of the contract." Hare on ConO'Hara avenue, the purpose of the party of tracts, 272. the first part being to retain, reserve, and not If the unauthorized act involved a crime, or part with the right to petition the city of was a transaction opposed to public policy, Pittsburg in behalf of said real estate to it could not be ratified at all. In discussing open O'Hara avenue and to vacate said Fort this point, on which the decree of the court street and Point alley, and she hereby re below is solely based, we do not overlook the serves the said right to herself, her heirs, ex fact that this appeal is, in substance, a writ ecutors, and administrators, without liability, of certiorari, and that on review we cannot however, for any assessment of benefits on go outside the record. But here, as part of said real estate by reason of said opening or the petition and record, are brought up the vacation.” This deed is made part of the deed, the power of attorney, and the averpetition to quash, and therefore part of the ment that Mrs. Schenley did not sign the record in the court below, as is also Mrs. petition to councils, which petition is part of Schenley's power of attorney to Mr. Herron, the record. The learned judge, in substance, in which is this clause: "The said John W. finds as a fact that Mrs. Schenley did sign Herron is also hereby authorized and empow the petition, though by his interpretation of ered to lay out lots in such form and front the law his conclusion is that she did not. ing on such streets, lanes, and alleys or areas His decree is not in accordance with the as in his judgment may be advisable." This facts of record, but in the teeth of them. is the only written authority he had at the We would not go outside the record to ascertime he joined in the petition to vacate. It tain if his finding of fact be correct. We was evidently a right to establish streets and take the fact as he finds it, and say his conalleys on the land. Afterwards, however, clusion was not warranted by the law. And Mrs. Schenley expressly and formally ratified this we have jurisdiction to do under the bis authority to sign the petition. We think law as announced in the Diamond Street it clear that under the reservation in the Case, 196 Pa. 254, 46 Atl. 428, and the authorideed the appellee had no standing to question ties there cited. the authority of Mrs. Schenley's representa But we do not care to rest the decision on tive. She could then and could now question this ground alone. Appellant raises another it if she chose. The city legislature, before question, which is broader, and may rule acting, might have demanded an exhibition other cases which will naturally arise under of the authority, but the Daughters of the the act of May 16, 1891, the act under which Revolution, by acceptance of the deed with the petitions were framed, and on which the reservation, have no such interest as au councils acted. As we said in the Diamond thorizes them to represent either Mrs. Schen Street Case, where the statute does give the ley or the city in questioning the agent's au right of appeal: "The jurisdiction of the thority. The court below decides that the court below was purely statutory. The Leg. power of attorney to Mr. Herron was not so islature might have conferred on councils the explicit as to cover the act of signing the right to widen the street without being first petition to vacate, and, although she swears petitioned to do so by a majority in interest in her deposition, "He had full authority from and number of property owners. It might me to sign in my name the petitions,” yet on have stopped just there; but it went further, its own interpretation of the written power and not only made the petition a condition narrows it so as to exclude any such author precedent, but gave a right of appeal to the ity, not heeding the rule that in case of even common pleas within 60 days by any one doubtful and ambiguous writings the inter interested. The statute, however, gave no pretation put upon them by the parties to further remedy to the discontented property them will be adopted by the courts. The owner.” It is argued by appellants, in supcourt concedes that, subsequent to the action port of their first assignment of error, that, of councils on the petition, Mrs. Schenley ex while the act authorizes an appeal to the pressly ratified her agent's act, but this the courts from the action of councils in enactjudge argues was too late, because the valid ing ordinances for opening, widening, and ity of a public ordinance cannot be made to improving streets, it is silent as to ordinances depend upon the subsequent action of a pri- vacating streets, and therefore the court bevate person. This reasoning confounds her low was without jurisdiction on this appeal, ratification of the act of her agent in repre because none was given by the statute.

In senting her on the petition with a ratification statutory proceedings it has been ruled in of the ordinance. To the validity of this last very many cases that there can be no ap. her ratification was not necessary. It was peals to the courts from the action of munica perfectly valid ordinance without her con ipal legislatures, except such as are allowed

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