VAN SYCKEL, J. The plaintiff is a municipal corporation of this state, duly organized as such, with power to grant or refuse to an applying company the right to construct and operate a street railway, by means of electricity as a motive power, through the public streets of its territory, and also the general power to regulate the use of its streets. On the 13th of August, 1896, the Union Traction Company applied for such grant, and, by an ordinance then passed, was given the right applied for. In consideration of the grant, it was required by said ordinance, and the said traction company undertook, to pay the plaintiff the sum of $250 in case it failed to construct and complete its tracks within the borough in a specified time, and also to pay for macadamizing Division avenue between Monroe and Hackensack streets, for one-half the cost of grading and macadamizing a part of Hoboken avenue between Monroe and Hackensack streets, and the entire cost of regrading, macadamizing, curbing, guttering, and flagging Hackensack street in case the mayor and council deemed it necessary to change the grade of that street. The traction company entered into a bond in the penal sum of $4,000, with the defendant company as surety, to comply with these conditions. Suit is brought upon this bond, and breaches are assigned. The defendant has demurred to the declaration.

Hoboken street is not one of the streets designated for the laying of tracks, but Hackensack street is; and the ordinance, which is made part of the declaration, shows that changes of grade were to be made on that street, and it appears that such a change was in fact made. Such change necessarily

involved some change in the grade and paving of the connecting streets.

The ground is taken by the defendant that, in conferring upon the borough the power to give or withhold the consent necessary to the grant of a franchise of this nature, the Legislature did not intend to invest it with the right to sell the privilege to the company, or to exact money for the improvement of its streets; that its exercise was intended to be governed exclusively with reference to the advantage or disadvantage of such a railway to the public, and cannot be made the subject of a bargain. Without assenting to this proposition, it is sufficient to say that the decision of the case turns upon a much narrower question, and one in regard to which we think no doubt can be well entertained. One of the requirements of the ordinance, and one of the express conditions of the bond, on which breach is assigned in the declaration, is that the traction company agreed to construct and complete its tracks within a specified time, and that it failed so to do within the prescribed time. It is the right and the duty of the governing body of such a municipal corporation to provide that companies, in exercising their right to lay rails upon the public streets, shall perform the work with such reasonable dispatch that travel shall not thereby be impeded or rendered less safe for an unreasonable length of time. This provision of the ordinance was a reasonable exercise of the corporate power, and the failure of the traction company to comply with it constituted a breach of the bond.

One sufficient breach being assigned, the demurrer must be overruled, with costs. It is not necessary to express an opinion with respect to the other breaches assigned.

(68 N. J. L. 627)

WILSON v. BORDEN. (Court of Errors and Appeals of New Jersey. March 2, 1903.)

BUILDING CONTRACT-BREACH-DAMAGES

EVIDENCE.

1. When, under a building contract, the contractor has been prevented from completing his work by the fault of the owner, the legal measure of damages is generally, for the work done, such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work, and, in respect to the work not done, such profits as he would have realized by doing it.

2. Evidence as to the cost of the entire work is necessary in order to ascertain what proportion of the whole work contracted for has been done.

3. The defendant will be entitled to show that the contractor has not done his work in compliance with the contract, and to claim such rebate as will satisfy the loss to him by reason of such noncompliance.

4. The contract provided "that if the architect shall certify that the refusal, neglect or failure of the contractor to comply with the

1. See Damages, vol. 15, Cent. Dig. §§ 332, 333

contract is sufficient ground for such action, the owner may terminate the employment of the contractor." The architect occupied a judicial position as to the parties, and was bound to act impartially upon his own judgment, aud to express in some appropriate language, in writing, his opinion that there was sufficient ground to take the work out of the contractor's hands.

5. A private letter written by the architect to the owner, and not communicated to the contractor, will not justify a rescission by the

owner.

(Syllabus by the Court.)

Error to Circuit Court, Monmouth County. Action by Wayman Wilson against Matthew C. D. Borden. Judgment for plaintiff, and defendant brings error. Reversed.

John S. Applegate & Son, for plaintiff in error. James S. Degnan, for defendant in

error.

VAN SYCKEL, J. This is a suit on a building contract, by contractor against owner, to recover for work done under the contract, dated April 23, 1901. The plaintiff alleged that the owner unlawfully rescinded the contract, and he was permitted by the trial court to recover the cost of the work he had done, and materials furnished.

The first question in the case is whether the owner was justified in putting an end to the contract.

Section 13 of the contract provides "that if the architect shall certify that the refusal, neglect or failure of the contractor to comply with the contract is sufficient ground for such action, the owner may terminate the employment of the contractor." On the 27th of August, 1901, the architects sent to Borden a letter, of which the following is a copy: "August 27, 1901. Dear Mr. Borden: We have your favor of the 26th inst, in relation to the progress of work on the Bleiman Cottage.

"We feel as you do about this matter, that the present progress is absolutely unsatisfactory, and that under existing conditions it is utterly impossible to prophesy the date of completion. We have urged the contractor on every possible occasion and have instructed him in many ways that with an ordinary contractor would be quite unnecessary, but he exhibits so little capacity for carrying on the work that we are quite discouraged about it, and we are therefore very willing to take any action in the matter which you may suggest.

"The present stage of the work is perhaps the most unsatisfactory of all, as the plastering work which is now being carried on prevents the progress of the woodwork on the interior, and this of course cannot be avoided.

"If you deem it advisable, we will forward to the contractor the formal notice to discontinue work which you have already sent to us for the purpose. We have no means of inducing the contractor to put more energy into the work, nor can we supply his deficiency in this particular. We have exhaust

ed every resource in our efforts to have him hurry the work.

"We await your instructions in the matter. "Yours truly, Cavere & Hastings." After receiving this letter the defendant, on the 7th of September, 1901, caused the notice referred to in the letter of the architects to be served on the plaintiff; having first changed its date to September 7, 1901. The said notice was as follows:

"Wayman Wilson, Esq.-Sir: In accordance with the terms of section 13 of my contract with you for work on the house formerly owned by Max Bleiman of Oceanic, N. J., I hereby give you notice that your failure to proceed with the work compels me to avail myself of my privilege under said contract to have the work finished by some other person. "Oceanic, 7th Sept. 1901.

"M. C. D. Borden."

An implication may be drawn from the letter of the architects that in their judgment the owner had a right to rescind, but the contractor should not be deprived of his contract by implication when there is an express provision in the contract that the architect must certify that there is sufficient ground for rescission. It is not necessary that the word "certify" shall be used, or that any formal language shall be employed by the architects, but they must express in some appropriate language, in writing, their opinion that there is sufficient ground for the owner to take the work out of the contractor's hands. There is an absence of such language. The architects occupied a judicial position as to these parties. They had no right to favor either, but were under a duty to act impartially between them. Their statement in the letter of August 27th that they were willing to take any action which the owner might suggest, and that they would forward the notice to rescind, if the owner so desired, does not show a correct judicial disposition; and from it the inference may be drawn that the architects had not fully made up their minds whether they should certify, but would be governed by the wish of the owner. That was not a compliance with the requirement to certify their own judgment as arbiters between the parties.

Besides the infirmity in this respect, the letter written by the architects to Borden, the owner, even if in form a certificate, could not justify the termination of the contract, because it was a private letter written to the owner, and not served upon, nor its contents communicated to, the contractor, whose rights under the contract were to be affected. All the information the contractor had was that the owner wished to rescind the contract.

The trial judge therefore properly instructed the jury that the contract was not lawfully rescinded by the owner.

The jury was thereupon directed to find a verdict for the plaintiff for the sum of $3, 266.79, with interest from September 11, 1901–the amount testified to by the plain

tiff as the cost of the work done and materials furnished by him. In this instruction to the jury an erroneous rule for computing the amount due to the plaintiff was adopted. In Kehoe v. Rutherford, 56 N. J. Law, 23, 27 Atl. 912, Mr. Justice Dixon formulated the correct rule as follows: "When the plaintiff has been prevented from completing his work by the fault of the owner, the legal measure of damages is generally, for the work done, such a proportion of the entire price as the fair cost of that work bears to the fair cost of the whole work; and, in respect to the work not done, such profits as he would have realized by doing it." If the plaintiff had completed one-quarter of the whole work contracted for, he would have been entitled to one-quarter of the contract price; if he had completed one-half, to onehalf of the contract price. To ascertain what portion of the work the plaintiff had done, it was necessary to ascertain what the cost of entire work would have been. The plaintiff had proved the cost of the work done, and the defendant offered to prove what it would cost to finish the contract work. This offer was erroneously overruled. If the plaintiff had done work which cost one-half of the cost of the entire work, he would have been entitled to one-half of the contract price for that work. It is proper, however, to observe, that the defendant would have a right to set up and show that the plaintiff had not done his work in compliance with the contract, and to claim such rebate as would satisfy the loss by reason of noncompliance.

The judgment below should be reversed, and a venire de novo awarded.

LEAVER v. KILMER et al. (Supreme Court of New Jersey. Feb. 25, 1903.)

APPEAL-BRIEFS.

1. A brief presented on appeal by one who has not been licensed to practice as a counselor at law will not be received.

Error to Circuit Court, Monmouth County. Action by John F. Leaver against Nelson H. Kilmer and others. Judgment for plaintiff, and defendants bring error. Defendants' brief excluded.

Argued November term, 1902, before GUMMERE, C. J., and VAN SYCKEL, FORT, and PITNEY, JJ.

Wesley B. Stout, for plaintiffs in error. S. A. Patterson, for defendant in error.

PER CURIAM. On the call of the list at the opening of the term, it was announced that this cause would be submitted upon briefs. Pursuant to this announcement, copies of the printed case and briefs were filed with the sergeant at arms. It appears, however, upon an inspection of the brief submit54 A.-52

ted on behalf of the plaintiffs in error, that it is presented by a member of the bar who has not as yet been licensed to practice as a counselor at law. This court will not receive such a brief. The cause stands, therefore, as if, notwithstanding the stipulation to submit it upon briefs under the rule, the plaintiff in error had entirely failed to comply with that stipulation.

The defendant in error is entitled to proceed as if no brief had been filed by his adversary.

JEFFRAY v. TOWAR et al.

(Court of Chancery of New Jersey. Feb. 13, 1903.)

TRUST FUND-PROFITS BY TRUSTEES.

1. The beneficiary of a trust fund is entitled to all profits made thereon by the trustee in violation of his trust.

Memorandum on settlement of decree.
For former opinion, see 53 Atl. 182.

Lindabury, Depue & Foulks, for complainant. Hartshorne, Insley & Leake, for defendants.

EMERY, V. C. Counsel have presented arguments and briefs upon the questions reserved, and, upon further consideration, I reach the following conclusions upon these questions:

1. In determining the principal of the trust fund or property in Towar's hands, the accounts submitted by Towar to Dwight, trustee, in his lifetime, and accepted by Dwight as the statement of the trustee account, must be taken as settling the amount of this principal for the purposes of this suit. As be. tween Dwight, the trustee, and Jeffray, the whole of this amount due on the trustee account is plainly to be treated as part of the trust fund, for the reasons stated in my opinion. It is, as there found, composed entirely of trust property, which is traced, or of additional deposits to the credit of the trustee account made by the trustee to replace trust funds for which he was liable. As between Dwight, trustee, and Towar, these statements of the trustee account, submitted and accepted, plainly fix the balances due. While Towar's liability to pay any portion of the account to Jeffray (Dwight's cestui que trust) depends upon Jeffray's establishing that the whole account was a trust fund, and that Towar had notice of this, the amount recoverable, if these points are established as I have found them to be, is the whole amount admitted to be due by the banker on the trustee account. Jeffray, as to the amount due, claims under Dwight, and is entitled to recover all that Dwight could recover on the face of the trustec account, subject, however, only to such setoff or defenses in favor of his own separate account as Dwight could lawfully impress upon the trustee account; and the circumstances that the balance due on the trustee

account up to its last statement (January 1, 1898) is, to some extent, the result of a previous compounding of interest, cannot entitle Towar now to readjust the entire trustee account from the beginning, in order to eliminate this feature of the accounts. The supposed equity upon which such claim for readjustment is based is that compounding of interest was allowed on the trustee account because it was charged in the additional account, and it was intended that one should offset the other. The answer to this claim is twofold: (1) As between Jeffray, the beneficiary, and Dwight, the balance on the trustee account represents the trust fund, and the profits thereon arising from the deposit of trust funds with the banker. As against the trustee, the beneficiary is clearly entitled to the whole of any profit. This is a settled rule in regard to profits made by trustees, and is made in order to penalize the use of trust funds; and the same principle should prevent the remission, for the benefit of the banker, of any portion of the profits or interest on the trustee account which the banker has already credited to the trustee, with notice that the fund is a trust fund. (2) Dwight is still liable on his separate account for the compound interest included therein, and the readjustment would inure solely to the benefit of the banker on the trustee accounts. The amount due upon the account, there fore, will be fixed according to the last statement as $19.926.63 due January 1, 1898.

2. Simple interest at 6 per cent. from that date is to be allowed. Complainant is seeking decree for the payment of the balance due on the banker's account held in trust for him, and his recovery is to be limited to the amount due on the account, as stated and agreed on between the banker and his trustee, with such interest thereon as is due for the retention of the money due him, not the interest due as between persons continuing to deal as banker and customer, nor as interest due from the trustee of an express trust, liable for profits. The interest is to be settled as on the ordinary basis of an action for money due.

3. Defendant Towar is chargeable with the interest received upon the two Colorado Coal & Iron Company bonds, so far as received, and not already charged in his account, and must deliver these bonds to complainant. If the amount received is not agreed upon, I will hear evidence, or refer to a master.

4. Defendant Towar is also to deliver to complainant the Wisconsin Central Railroad bond received in exchange for the Chippewa Falls & Western Railway Company bond, and account for the interest received thereon since October 22, 1895, the date of the last credit of interest. This may be settled without an accounting.

5. As against defendant Dwight's administrator, complainant is entitled to a decree for the entire amount of the principal fund

of the trust estate in his hands, as shown by his account to complainant, together with interest thereon from the date of the last payment of interest, and deducting the payments of $5,000 principal. Any amounts realized from the Connecticut lands are to be credited upon this balance, and also any payments made under this decree by defendant Towar; and, if the latter payments be made, then, after the payment or satisfaction of the entire amount due from the trustee's estate, defendant Towar may apply to have the decree against the Dwight estate assigned to him, to the extent of his payments.

1. Upon the views announced in Road Commission v. Haring, 26 Atl. 915, 55 N. J. Law, 327, the act of April 24, 1894 (Gen. St. p. 2864), by which the functions of county road boards were transferred to the boards of chosen freeholders, is valid, notwithstanding the fact that the functions of the road board in Essex county differed from those permitted to road boards in other counties.

(Syllabus by the Court.)

Certiorari by Samuel H. Bowman against the board of chosen freeholders of Essex county to review an assessment for the widening of Bloomfield avenue. Affirmed. Argued November term, 1902, before HENDRICKSON and DIXON, JJ.

Robert H. McCarter, for prosecutor. Joseph A. Munn, for defendant.

DIXON, J. The proceedings subjected to review by this certiorari were taken by the board of chosen freeholders of Essex county in widening a public road, pursuant to the provisions of the local statutes establishing and controlling the Essex public road board. The legality of the proceedings depends on the act of April 24, 1894 (Gen. St. p. 2864), passed to transfer the powers, duties, rights, and authorities of all county public road boards to the boards of chosen freeholders in the respective counties. As the functions of the Essex county road board were different from those permitted to road boards in other counties, it is insisted by the prosecutor that an enactment to transfer those functions to another county board must necessarily be local and special, whether embraced in a statute general in form or not, and therefore must be prohibited by our Constitution. An examination of this claim on principle in this court seems to be precluded by the opinion of the Court of Errors in Road Commission v. Haring, 55 N. J. Law, 327, 26 Atl. 915, where Mr. Justice Van Syckel, speaking for that court, declared that

the act of February 10, 1881 (Gen. St. p. 2862), which transferred the functions of every county road board to a committee of the board of chosen freeholders, rested on a substantial basis of classification, and was not prohibited by the organic law. That declaration must be equally applicable to an act transferring the same powers and duties from a committee of the board to the whole board.

The proceedings are affirmed, with costs.

(84 N. J. E. 588)

MERCER COUNTY TRACTION CO. v. UNITED NEW JERSEY R. & CANAL CO.

(Court of Chancery of. New Jersey. April 16,

1903.)

STREET RAILROADS ESTABLISHMENT MUNICIPAL CONSENT-CONSENT OF ABUTTING OWNERS - EXECUTION SEAL ACKNOWLEDGMENT STATUTES REPEAL-CONSTRUCTION-EXTENSIONS-MAPS - DESCRIP

TION-VARIANCE-JUDGMENTS-ESTOPPEL.

1. P. L. 1896, p. 329, provides that no street railroads shall be constructed except on consent of the governing body of the municipality on the written consent of one-half of the abutting owners filed with the clerk of such governing body. Held that, since the filing of the requisite consent by the property owners was a condition precedent to the passage of an ordinance granting authority to construct a railroad, it would be presumed, in the absence of a contrary showing, in a subsequent proceeding, that the township committee before authorizing such construction determined that the consent of such owners had been filed.

2. Under P. L. 1896, p. 329, declaring that no ordinance for the construction of a street railway shall be passed until consent in writing of abutting owners, executed and acknowledged as are deeds, entitled to be recorded, has been filed with the clerk of the governing body of the municipality, consents filed, but not sealed, were insufficient to confer jurisdiction on a township committee to authorize the construction of a road.

3. Where consents of abutting property owners to the construction of a street railway were sealed, an acknowledgment thereto that the grantors signed and delivered the same as their voluntary act and deed was not objectionable for failure to recite that the grantors sealed the same, the sealing being implied from the acknowledgment that the instrument was the signer's deed.

4. P. L. 1894, p. 374, providing that no street railway shall be constructed upon any street or highway in a municipality, except on consent of its governing body and ou consent of a certain proportion of the owners of abutting property on streets to be used, was superseded by P. L. 1896, p. 329, covering the same subject.

con

5. P. L. 1896, p. 329, provides that no street railway shall be constructed in any city, town, township, village, or borough except on sent of the governing body of such municipality, etc., and that such consent shall not be granted except on filing with the clerk of such governing body of the consent of a certain proportion of abutting owners. Section 2 authorizes the change of motive power, and is followed by a proviso that if any board, body, or public authority other than the governing body of such municipality, etc., shall have control of the streets or highways over which the proposed road is to be constructed, the consent of such board 'or public authority shall also be re

quired, which shall be granted only on notice. Held, that the consent of abutters was only required to be once given and filed before the municipal authorities mentioned in the first section grant permission, and the act did not require the filing of the same cousents as a condition to the railroad's obtaining the additional consent of the board of chosen freeholders of the county under such proviso.

6. Under a statute providing that before the beginning or construction of any extension to a street railway the corporation shall file in the office of the Secretary of State a description of the route of such extension, showing the termini, with a map exhibiting the same, with the courses and distances thereof, the fact that the map of an extension marked a distance running 1,462 feet more or less, while the description filed omitted the words "more or less," was immaterial, since such words might be rejected as surplusage.

7. A decree in a proceeding by certiorari to determine the validity of an ordinance granting a street railway company the right to lay its road on the highway within a township, determining that such ordinance was valid, did not estop the contestant in a subsequent new proceeding to contest the validity of the ordinance for reasons not advanced or considered in the prior suit.

Petition by the Mercer County Traction Company against the United New Jersey Railroad & Canal Company for the determination of a method by which the petitioner may have a crossing over defendant's railroad. Petition denied.

John H. Backes, for complainant. Alan H. Strong, for defendant.

REED, V. C. This is a petition filed by the Mercer County Traction Company for the purpose of having this court fix a method by which its road shall cross the road of the Pennsylvania Railroad Company at Yardville. The present road was organized as an extension of another road, also known as the Mercer County Traction Company, running from Allentown to Yardville. The present road starts from the terminus of the former road, and runs 1,462 feet northerly. The United New Jersey Railroad & Canal Company, lessors, and the Pennsylvania Railroad Company, lessees, of the road to be crossed, challenge the power of this court to act upon the petition. The objection to the jurisdiction of the court is put upon the ground that the conditions essential to equip the petitioners with a legal existence have not been performed.

The incorporation of the petitioners seems to have been under section 6 of the act of 1893 (P. L. p. 306), which provides for the extension of an existing railway. The first objection is that the railroad of which the petitioners pretend to be an extension, namely, the road of the original Mercer County Traction Company itself, had no legal existence. The evidence offered by the petitioners in respect to the organization of that road is a certificate of incorporation dated January 19. 1899, recorded in the office of the clerk of Mercer county July 31, 1899, and

7. See Judgment, vol. 30, Cent. Dig. § 1263.