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(204 Pa. 588)

RALSTON et al. v. IHMSEN et al. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

SPECIFIC

PERFORMANCE-UNCERTAIN

DAMAGES-DEATH OF PARTNER-PURCHASE OF INTEREST-ARBITRATION-FINDING.

1. Where damages at law are an insufficient remedy for breach of contract, because there is something peculiar in the subject of the contract, that cannot be represented by damages, and such damages are uncertain, a specific performance of the contract will be decreed.

2. Specific performance of a contract by the administrators of a. deceased partner to sell his interest to the surviving partners in a glass manufacturing business will be decreed, where the interest of the decedent was of specific value to the purchasers, as enabling them to continue without interruption a business to which they had contributed most of the capital.

3. The jurisdiction to enforce the specific performance of a contract by the administrators of a deceased partner to sell his interest in the business to the surviving partners is in the court of common pleas, and not the probate court.

4. An agreement for the sale of the interest of a deceased partner to his surviving partners provided that the value thereof should be determined by two referees, who, on disagreement, should choose a third, and that their finding, or that of two of them, should be conclusive. Held, that where two of the referees originally chosen agreed on the value of all the property, except certain furnaces and ovens, and chose a third referee, who, as an expert, valued them, and accepted the valuation of the original referees as to the other property, a finding by such third referee and one of the others as to the value of all the property was sufficient.

Appeal from Court of Common Pleas, Allegheny County.

Bill by John Ralston and others against Herbert L. Ihmsen and others, administrators of Thomas O. Ihmsen, deceased. Decree for plaintiffs, and defendants appeal. Affirmed.

Bill in equity for specific performance of an agreement to sell the interest of decedent in a business conducted by the plaintiffs and decedent as partners. The agreement was as follows:

"Now, therefore, this agreement witnesseth, that we, Herbert L. Ihmsen and D. O. Ihmsen, administrators of the estate of Thomas O. Ihmsen, deceased, John Ralston, William S. Cunningham, B. J. Stenger, and B. J. Stenger and Mary A. Stenger, executors of the estate of Robert Cunningham, deceased, do hereby agree to submit to arbitrators or referees without exception or appeal, the question as to the value of the interest of Thomas O. Ihmsen, deceased, in the partnership association of Cunninghams & Company, Limited, and the copartnership of Cunninghams & Company and Cunninghams & Company, Limited, to include all interest which said Thomas O. Ihmsen's estate has or may have in said real estate, leasehold and all of the copartnership assets of said firm or partnership association, and for that purpose the said Herbert L. Ihmsen and D. O. Ihmsen, administrators as aforesaid, have selected D. C. Snyder, of the city of Pittsburg, as one of the arbitrators or referees, and the said John Ralston, William S. Cunningham, B. J. Sten

ger, and B. J. Stenger and Mary A. Stenger, executors of the estate of Robert Cunningham, deceased, have selected C. Frederick Leng, of the city of Pittsburg, aforesaid, as the other arbitrator or referee; the said D. C. Snyder and C. Frederick Leng to proceed at once to determine the value of the interest of the said Thomas O. Ihmsen, deceased, in said real estate and all copartnership assets of Cunninghams & Company and Cunninghams & Company, Limited. But in case said D. C. Snyder and C. Frederick Leng cannot agree between themselves as to the value thereof, then they shall call in a third party to be mutually chosen by them to act with them as an arbitrator or referee in said matter. And it is mutually agreed and understood that the award in writing of the said arbitrators or referees, or any two of them, shall be final and conclusive as to the value of the interest of said Thomas O. Ihmsen, deceased, in the said firm of Cunninghams & Company, Cunninghams & Company, Limited, and said real estate and on any matter or thing touching or concerning the interest of said Thomas O. Ihmsen, deceased, therein; and each and every of said parties to this agreement do hereby waive any right of action, suit or suits or other remedy at law or otherwise touching the interest of said Thomas O. Ihmsen in said copartnership or partnership association, so that the decision of said arbitrators or referees, or any two of them, shall be in the nature of an award in writing, final and conclusive as determining the value of the interest of said Thomas O. Ihmsen aforesaid.

"And immediately after the value of said interest is fixed and determined by said arbitrators, or any two of them, and on the payment of the amount thereof to them, the said Herbert L. Ihmsen and D. O. Ihmsen, administrators as aforesaid, covenant and agree that they will, at their own proper cost and charges, grant, convey and assure unto the other parties to this agreement, all of the interest of the said Thomas O. Ihmsen, deceased, in said copartnership property, real estate, and partnership association in such a manner as will fully vest the title and ownership thereof in said other parties."

The referees named a valuation of all of of the property, except the furnaces and ovens. They selected H. L. Dixon as a third referee, and as one having expert knowledge of the value of furnaces and ovens. Dixon accepted the valuation of the other property made by the other two referees, and appraised the furnaces and ovens himself. His valuation was accepted by Lane, but not by Snyder.

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

L. C. Barton, for appellants. Levi Bird Duff and L. B. D. Reese, for appellees.

FELL, J. The court had jurisdiction in this case, and it was properly exercised in

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 administrators 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 a 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."

As

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. 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

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.

(204 Pa. 572) DAUGHTERS OF AMERICAN REVOLUTION OF ALLEGHENY COUNTY v. SCHENLEY et al. (two cases). (Supreme Court of Pennsylvania. Jan. 5, 1903.)

AT:

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

tain streets, a subsequent ratification of his act by his principal was equivalent to precedent authority.

3. Though 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 American 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 which was some years ago conveyed by her to the Daughters of the American Revolution, a corporation, for certain purposes, stated in the deed, which deed created a base fee in that corporation. The deed of Mrs. Schenley to the corporation also contained a reservation to herself of the right to represent the property described in the deed in a petition concerning the vacation of the street in question, with a provision that, in case any damages should arise from the vacation, that she should not be liable for the same, so far as concerned that property. Mrs. Schenley is a resident of England, and Mr. John W. Herron has a power of attorney from her, which is of record in the recorder's office of Allegheny county, whereby he is authorized to do for her a considerable number of specific things. Some time prior to the signing of the petition in question, Mrs. Schenley, by articles of agreement, agreed to sell some or all of the lands abutting on the street to Mr. F. F. Nicola. The petition was signed by Mr. Nicola and by Mary E. Schenley, by her attorney in fact, John W. Herron, and was sworn to by each of them. At the time of the signing and presentation of the petition and the passage of the ordinance, Mrs. Schenley had no knowledge of the transaction. Some time afterwards she heard of it, and was satisfied with the action of Mr. Herron in signing the petition.

"The legal questions which appear to arise on this state of facts are, first, whether the act in question gives jurisdiction to this court in the case of a vacation of a street to inquire into the signing of the petition by a sufficient number of qualified petitioners; and, second, whether the plaintiffs have standing to object to the petition; third, whether the power of attorney of Mr. Herron authorizes him to sign such a petition, and, if not, whether the subsequent ratification of his signature by Mrs. Schenley will cure the original want of power; and, further, whether, in either event, the signature of Mrs. Schenley's attorney in fact is sufficient to bind the Daughters of the American Revolution in respect to their land, under the reservation in their deed.

"The question of jurisdiction, discussed to some extent by this court in the case of Ebe's Appeal, reported in 31 Pitts. Leg. J. (N. S.) 361, was one raised by the court, and not argued by counsel, and the case was decided upon other grounds. In that case we expressed an opinion that it is at least doubtful if the provisions of the tenth section of the act of May 16, 1891 (P. L. 75, 79), gave an appeal to the court in the case of a petition for the vacation of a street. The word 'vacating' does not appear in the section, and, if a vacation is included in its provisions, it must be under the head of 'otherwise improving.' It is true, on the one hand, that the words appear to be taken from the eighth section, which speaks of 'grading, paving,

macadamizing, and otherwise improving,' and may, therefore, be well interpreted to refer to improvements of a similar kind. Yet it is also true that the vacation of streets is, in the same act, more than once spoken of as an improvement, and the word 'improvement' is used as a generic word, including not only the change of the physical nature of the street, rendering it more convenient than before, but also the opening, widening, extending, and vacating of streets. This use of the word in the act was not observed in the discussion in the Ebe Case. If the act be interpreted to cover all the 'improvements' authorized and regulated by the act, including the vacation of streets, it will remove an apparent anomaly. It is not apparent why a petition of a certain kind should be required for all these improvements, and the determination of the question whether the petition is in fact of that kind should be different in different cases.

"As to the standing of the appellants as owners of abutting lands, we think there can be no doubt, as they have at least a base fee in the lands, and, notwithstanding the reservation in their deed, are liable for damages.

"That Mr. Herron's power of attorney is not sufficient to authorize him to sign such a petition for Mrs. Schenley is, we think, very plain. We can find nothing in it which even approaches such a power. The evidence is, however, that Mrs. Schenley afterwards ratified his act. In transactions in which the public is not concerned, and no third person's rights are involved, no doubt the ratification would amount to a previous authority; but the power of councils to pass a valid ordinance depended on the petition, and it cannot be that the validity or invalidity of the legislation can be made to depend upon the subsequent action of a private person at some indefinite time thereafter. If the petition was not sufficiently signed when acted upon by councils, their action was wholly void, and cannot be brought to life by the ratification of an act which was a prerequisite to it. Neither do we understand how the general conduct of Mrs. Schenley in not objecting to the previous acts of her representative in regard to streets gives Mr. Herron any greater authority. There might be something in it if it were not for the fact that he had a minutely specific power of attorney, and professed to act under it. Besides, it does not appear that Mrs. Schenley had any specific knowledge of the fact that her representative had signed such petitions for her at any time.

"A further matter to be considered is what is meant by the reservation of the deed of the right to 'represent the property' conveyed to the plaintiffs. The act calls for the signatures of the abutting owners. Is Mrs. Schenley to be deemed the abutting owner of all the land, including that of the plaintiffs, because she reserved the right to represent the property in such a petition? We are of

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 92 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 91⁄2 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 9% 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 92 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 the 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 councils 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 notice 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 purposes, and her desire to aid and assist the Daughters of the Revolution in carrying out their patriotic purpose, she expressly stipulates as follows: "Subject to the right of the party of the first part [Mrs. Schenley] to represent said above-described real estate in all proceedings looking to the opening of O'Hara avenue, the purpose of the party of the first part being to retain, reserve, and not part with the right to petition the city of Pittsburg in behalf of said real estate to open O'Hara avenue and to vacate said Fort street and Point alley, and she hereby reserves the said right to herself, her heirs, executors, and administrators, without liability, however, for any assessment of benefits on said real estate by reason of said opening or vacation." This deed is made part of the petition to quash, and therefore part of the record in the court below, as is also Mrs. Schenley's power of attorney to Mr. Herron, in which is this clause: "The said John W. Herron is also hereby authorized and empowered to lay out lots in such form and fronting on such streets, lanes, and alleys or areas as in his judgment may be advisable."

This

sent. She only ratified the act of her agent, and her ratification of his act in signing the petition, even if he had no authority when he signed, was fully equivalent to precedent authority. "The adoption of a contract made on our behalf by some one we did not authorize is a ratification, and relates back to the execution of the contract." Hare on Contracts, 272,

If the unauthorized act involved a crime, or was a transaction opposed to public policy, it could not be ratified at all. In discussing this point, on which the decree of the court below is solely based, we do not overlook the fact that this appeal is, in substance, a writ of certiorari, and that on review we cannot go outside the record. But here, as part of the petition and record, are brought up the deed, the power of attorney, and the averment that Mrs. Schenley did not sign the petition to councils, which petition is part of the record. The learned judge, in substance, finds as a fact that Mrs. Schenley did sign the petition, though by his interpretation of the law his conclusion is that she did not. His decree is not in accordance with the facts of record, but in the teeth of them. We would not go outside the record to ascertain if his finding of fact be correct. We take the fact as he finds it, and say his conclusion was not warranted by the law. And this we have jurisdiction to do under the law as announced in the Diamond Street Case, 196 Pa. 254, 46 Atl. 428, and the authorities there cited.

But we do not care to rest the decision on this ground alone. Appellant raises another question, which is broader, and may rule other cases which will naturally arise under the act of May 16, 1891, the act under which the petitions were framed, and on which councils acted. As we said in the Diamond Street Case, where the statute does give the right of appeal: "The jurisdiction of the court below was purely statutory. The Legislature might have conferred on councils the right to widen the street without being first petitioned to do so by a majority in interest and number of property owners. It might have stopped just there; but it went further, and not only made the petition a condition precedent, but gave a right of appeal to the common pleas within 60 days by any one interested. The statute, however, gave no further remedy to the discontented property owner." It is argued by appellants, in support of their first assignment of error, that, while the act authorizes an appeal to the courts from the action of councils in enact

is the only written authority he had at the time he joined in the petition to vacate. It was evidently a right to establish streets and alleys on the land. Afterwards, however, Mrs. Schenley expressly and formally ratified his authority to sign the petition. We think it clear that under the reservation in the deed the appellee had no standing to question the authority of Mrs. Schenley's representative. She could then and could now question it if she chose. The city legislature, before acting, might have demanded an exhibition of the authority, but the Daughters of the Revolution, by acceptance of the deed with the reservation, have no such interest as authorizes them to represent either Mrs. Schenley or the city in questioning the agent's authority. The court below decides that the power of attorney to Mr. Herron was not so explicit as to cover the act of signing the petition to vacate, and, although she swears in her deposition, "He had full authority from me to sign in my name the petitions," yet on its own interpretation of the written power narrows it so as to exclude any such authority, not heeding the rule that in case of even doubtful and ambiguous writings the interpretation put upon them by the parties to them will be adopted by the courts. The court concedes that, subsequent to the action of councils on the petition, Mrs. Schenley expressly ratified her agent's act, but this the judge argues was too late, because the valid-ing ordinances for opening, widening, and ity of a public ordinance cannot be made to depend upon the subsequent action of a private person. This reasoning confounds her ratification of the act of her agent in representing her on the petition with a ratification of the ordinance. To the validity of this last her ratification was not necessary. It was a perfectly valid ordinance without her con

54 A,-24

In

improving streets, it is silent as to ordinances vacating streets, and therefore the court below was without jurisdiction on this appeal, because none was given by the statute. statutory proceedings it has been ruled in very many cases that there can be no appeals to the courts from the action of municipal legislatures, except such as are allowed

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