is to be kept for the party making the deposit, | titled to receive as commission a certain peror when wrongful possession of such prop- centage of these premiums when paid over. erty is obtained (Murphey v. Virgin, 47 Neb. An action of trover by the principal might, 692, 66 N. W. 652; Donohue v. Henry, 4 under these circumstances, be unjust to the E. D. Smith [N. Y.] 162; Coffin v. Anderson, agent by depriving him of his right of set-off 4 Blackf. [Ind.] 395). In Moody v. Keener, 7 and other legal defenses. Orton v. Butler, Port. (Ala.) 218, it was held that in actions supra. of tort only the same certainty is required as Exceptions overruled. in indictments that it was not necessary to set out the money verbatim that the description in a general manner is sufficient, and is in accordance with the decisions of this state. MINSHULL v. NEW JERSEY TERMINAL Stinchfield v. Twaddle, 81 Me. 273, 17 Atl. R. CO. 66; Manufacturing Company v. Lumber Company, 96 Me. 537, 53 Atl. 40.

(76 N. J. L. 684)

(Court of Errors and Appeals of New Jersey.
Nov. 16, 1908.)

CORPORATIONS (§ 407*)-CONTRACTS OF PRES-
IDENT VALIDITY-WORK AND LABOR (§ 14*)
-RESCISSION OF EXPRESS CONTRACT.

2. The Title of the Plaintiff. It is contended that the evidence shows that the money belonged to the Equitable Life Assurance The plaintiff, who was employed by the Society of the United States. It appears from defendant at a stated salary, testified that he the evidence that the plaintiff was the manwas induced to decline a higher salary offered ager of this society in the state of Maine, by another railroad, and to remain in the service of the defendant by a promise made by its and that the money in question was a pre-president that, if he remained until the road mium due to it on one of its life insurance pol- was sold, he should have 2 per cent. of its icies. By the contract the defendant was ap-bonds and $25,000 worth of its stock. The depointed by the plaintiff to canvass for applications and to collect the premiums on all policies obtained by him, and to pay over forthwith to the plaintiff or to the assurance society. As between the parties, the plaintiff, having a special property in the premiums collected, was entitled to receive them. This right gave him a remedy against the defendant upon his refusal to pay over the same as directed. McKenzie v. Nevius, 22 Me. 138, 38 Am. Dec. 291.

3. In determining from the circumstances and relation of the parties whether trover or assumpsit is the proper remedy, it is necessary to consider the distinctive quality of money as differing from other kinds of property, and the character and conduct of the defendant in receiving and retaining the money in question. From its nature the title thereto passes by delivery, and its identity is lost by being changed into other money or its equivalent in the methods ordinarily used in business for its safe-keeping and transmission. An agent, unless restricted by the terms of his contract, would violate no duty assumed by him by adopting these methods in dealing with the money of his principal. Mere failure to deliver such property in specie on demand would not be technical conversion, nor would the refusal to pay over its equivalent be conclusive evidence of conversion in the sense of the law of trover, but might be the ground for an action of assumpsit. Orton v. Butler, 4 Eng. C. L. 224; Hennequin v. Clews, 111 U. S. 676, 4 Sup. Ct. 576, 28 L. Ed. 565; 1 Fed. St. Ann. 578-581 (U. S. Comp. St. 1901, p. 3428).

The defendant was the agent of the plaintiff for the collection and paying over not of a single premium of insurance, but such as were payable for all policies effected by him in his business of canvassing, and he was en

fendant owned no stock or bonds at the time. This promise never received the assent of the executive committee nor of the board of direc tors, but, instead, a modified proposition was made to the plaintiff by some of the directors, which he refused to accept. The road was thereafter sold, and thereby the plaintiff's services ended. His salary under his old contract was paid. In an action against the railroad company for breach of a contract to deliver the bonds and stock, held, first, that the president had no authority as such to make the alleged promise, and, in the absence of any ratification of it by the directors, it did not bind the decould be no recovery quantum meruit because fending company; held, secondly, that there the old contract remained in force, not having been rescinded by a subsequent agreement.

[Ed. Note.-For other cases, see Corporations, Labor, Cent. Dig. § 29; Dec. Dig. § 14.*] Cent. Dig. & 1616; Dec. Dig. § 407;* Work and

(Syllabus by the Court.)

Error to Supreme Court.

Action by George B. Minshull against the New Jersey Terminal Railroad Company. From a judgment of nonsuit, plaintiff brings error. Affirmed.

C. Frank Kircker and John B. Humphreys, for plaintiff in error. Gilbert Collins, for defendant in error.

REED, J. This writ of error brings up a judgment of nonsuit. It appears that Mr. Minshull, the plaintiff, had been employed by the New Jersey Terminal Railroad Company at a salary of $175 a month. In July, 1905, he received an offer from the Lehigh Valley Railroad Company to enter its services at a salary of $200 a month. He spoke to Mr. Savage, the president of the defending company, about this offer, and told him that he (Minshull) would refuse the offer of the Lehigh Valley Railroad Company, and remain in the service of the defendant until the latter sold its road, if the defendant, in addition to his then salary, would

said street railway companies in any territory heretofore or hereafter annexed to the said city of Newark shall be operated; and

measured by its terms until that contract | of street railways owned or operated by the ceased to exist. It continued to exist unless a substituted contract took its place and thus ended it. But the promise of Mr. Savage, if made, being beyond his authority | further providing and defining the manner to bind the defendants, and being never ratified by them, the negotiations between the parties never became a new contract, and so the old contract remains in force until the end of the plaintiff's services.

in which certain gross receipts provided for in a certain ordinance passed July 13, 1893, entitled, 'An ordinance to authorize and empower the Consolidated Traction Company, a corporation incorporated under the laws

There was no error in directing a nonsuit. of the state of New Jersey, to locate, con

(77 N. J. L. 198).

struct, operate and maintain street railways and appurtenances over and through certain streets, avenues and highways in the city of

EGGERS et al. v. MAYOR, ETC., OF CITY Newark,' shall be computed and determined,"

OF NEWARK et al.

(Supreme Court of New Jersey. Dec. 30, 1908.) 1. ACTION (8 7*)-INTERESTED PARTY - Mo

TIVES.

If a party to a cause is asserting a legal right in a lawful manner, his motives and the underlying reasons for his action are immaterial in law.

passed by the board of street and water commissioners on the 19th day of January, A. D. 1905, and approved by the mayor of said city on the 20th day of January, A. D. 1905. The contract recited in this somewhat lengthy title is dependent on the ordinance for its validity. For an understanding of the scope

[Ed. Note. For other cases, see Action, Cent. and effect of the contract and ordinance, a Dig. 8; Dec. Dig. § 7.*]

2. MUNICIPAL CORPORATIONS (8_106*)-ORDINANCES - SUSPENSION OF BY-LAW-ADVER

TISEMENT.

The by-law adopted by the board of street and water commissioners of the city of Newark, pursuant to legislative authority, which by-law requires advertisement between first and second reading of ordinances not based on "notice of intention," could not, at the time of action by the said board on the ordinance brought up in this case, be suspended so as to render advertisement unnecessary and permit the introduction and passage of the ordinance at the same meeting.

short outline of the matters leading up to the contract may as well be presented here. As far back as 1890, in the early days of electric street railways, the city of Newark required of the railway company, asking permission to operate such railway in the streets, a payment, in addition to general taxes and existing license fees, of "five per cent, of the gross earnings received from passenger traffic within the city limits from lines on which electricity is used as a motive power." Similar action by ordinance was taken afterward from time to time with respect to other lines,

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 226; Dec. Dig. especially in 1892, in the case of the Newark 106.*]

(Syllabus by the Court.)

Certiorari by Augustus F. Eggers and R. Arthur Heller against the Mayor and Common Council of the City of Newark and others to review an ordinance of the board of street and water commissioners. Ordinance set aside.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

Chandler W. Riker and Francis Child, for prosecutors. Frank Bergen and R. V. Lindabury, for North Jersey St. Ry. Co. and Consolidated Traction Co. Malcolm MacLear, for other defendants.

PARKER, J. This writ brings up for review an ordinance of the board of street and water commissioners of the city of Newark, entitled, "An ordinance validating and confirming a certain contract or agreement made on the seventeenth day of January, 1905, by the mayor of the city of Newark and the city counsel of the said city, on behalf of the said city and the Consolidated Traction Company and the North Jersey Street Railway Company, lessee, providing for and defining the terms and conditions upon which the lines

& South Orange Railway Company, when the same language as quoted was used; and

in 1893, in the case of the Consolidated Traction Company, when the 5 per cent, provisions of the ordinance of 1892 were expressly But difficulties soon arose, due to the facts made applicable by citation and reference. that many car lines already extended beyond the city limits, and others from time to time were so extended, and the parties disagreed as to the interpretation of the clause in question. In addition to this, new territory was added from time to time, by absorption of other municipalities which themselves had agreements with the car lines; and finally the street railroads themselves were all merged into or acquired by the North Jersey Street Railway. Settlements were made from time to time by agreement between the city and the companies as to amounts then due, but no basis was fixed for ascertaining these amounts in the future. To accomplish this, the contract and ordinance of 1905 were drafted by joint action of counsel for the city and the railway company, and after informal conferences the contract was executed by the North Jersey Street Railway Company and its counsel, and signed by the mayor of Newark and the city counsel, and the ordi

It is objected at the outset that prosecutors have no legitimate standing. It appears by the proof that prosecutor Eggers was president of the board of street and water commissioners at the time the ordinance in question was passed, was present at the meeting and voted for it, and the claim is made that this estops him from attacking it. It also appears that on December 29, 1905, the common council directed the institution of proceedings and the employment of special counsel to set aside the agreement and ordinance in question, such proceedings to be brought "in the name of the city or otherwise," and that the other prosecutor, Heller, appeared as such at the suggestion of such special counsel, assumed no financial responsibility, and employed no counsel in his own behalf. We find nothing in the attack on Mr. Heller's status that bars him from prosecuting. As a party, he is responsible to the defendants for costs, if defeated; and as he appears voluntarily, and thereby assumes that responsibility, neither his motive, nor the reason for his action, nor the question how his counsel are to be paid, is a material inquiry, if he is asserting a legal right in a lawful manner. Davis v. Flagg, 35 N. J. Eq. 491; Hodge v. U. S. Steel Corporation, 64 N. J. Eq. 111, 53 Atl. 601. If this be the case as to Heller, the status of Eggers becomes an academic question.

nance was presented to the board of street | larity. And on this branch of the case the and water commissioners at a meeting on first reason advanced by prosecutors seems January 19, 1905, and put through three decisive, viz., that the ordinance was not readings and final passage at the one meet-legally passed, and for the reason that its ing. It is this action which prosecutors at- attempted passage by the board of street and tack. water commissioners was in violation of a by-law of that body, which reads as follows: "Every ordinance shall be read by the clerk when presented, and shall be ordered to a second reading; but no ordinance shall have a second reading at the meeting at which it was presented or reported to the board, without the assent of two-thirds of the members present. Nor shall any ordinance have a third reading at the meeting at which it is presented without the assent of two-thirds of the members present. All ordinances except those which are based on a published notice of intention shall, between their first and second readings, be published at least five times in at least two of the approved newspapers designated by the Board." The ordinance fell within the last clause, but no publication was had, as required in that clause. On the contrary, the ordinance was read three times, put on its final passage, and passed, all at the one meeting. The defendant companies undertake to meet this criticism in two ways. They say, first, that the proceeding was validated by a "suspension of the rules." The minutes show that Commissioner Ballard asked unanimous consent for the introduction of the ordinance, which was given, and the ordinance introduced and "read for the first time, and on motion the rules were suspended, and the ordinance was taken up and read for a second time, and there being no amendments passed second reading and was ordered to a third and final reading by a unanimous vote. * * * Commissioner Ballard moved that we suspend section 2 of chapter 15 of the by-laws for the purpose of giving this ordinance a third and final reading, which motion was unanimously passed. The ordinance was taken up and read for a third time and passed a third and final reading by a unanimous vote."

But it is further objected that a mere taxpayer as such is not entitled to question the ordinance brought up by this writ, because it does not appear that he suffers any special injury from the proceedings under review. Counsel rely on the case of Jersey City v. Traphagen, 53 N. J. Law, 434, 22 Atl. 190, as controlling in this case; but, if it can be said that the present complaint falls within the lines of the Traphagen Case, the question is settled by the later cases of Oliver v. Jersey City, 63 N. J. Law, 96, 42 Atl. 782, in which the opinion of the Supreme Court on this point was expressly approved by the Court of Errors and Appeals in 63 N. J. Law, 634, 44 Atl. 709, 48 L. R. A. 412, 76 Am. St. Rep. 228, on error; and Rehill v. East Newark, 73 N. J. Law, 220, 222, 63 Atl. 81. For reasons appearing more fully elsewhere in this opinion, the ordinance directly affects the revenues of the city, and, while there may perhaps be room for dispute as to whether its net results in the future will be financially injurious or beneficial to the city, there can be no question that by it important and valuable rights of the city, both present and prospective, are surrendered. We are clearly of opinion therefore that the municipal action is of the character that entitles

There is some confusion in the case on the question whether section 2 of chapter 15 is the section quoted, or whether it is section 2 of chapter 16. The matter is explained by the allegation of counsel for the defendant companies that a new edition of the by-laws, revised in March, 1905, after the meeting in question, was introduced in evidence by prosecutors as the by-laws in force at the time, instead of the previous edition; and a printed book, not put in evidence but purporting to be the by-laws of 1903 and in force in January, 1905, was submitted by defendants' counsel on the argument. A comparison of the two compilations show that they are identical with the exception of an additional chapter interpolated in the revision of 1905 so that chapters 14 and 15 of the old by-laws became chapters 15 and 16 respectively of

* *

tified to without objection or challenge, as | venience of handling the business of a meetthat in force in January, 1905. If this be ing; and it is evident that, if they can be so, then section 2 of chapter 15 of that edition, relating to inspection of public works, had no bearing at all on the passage of an ordinance, and its suspension, if effective, was useless. If, on the other hand, we accept the assertion of defendants' counsel that section 2 of chapter 15 of the old edition (16 of new edition) was referred to in the motion, we find it as above quoted, and the question before us is whether there was a valid suspension of its provisions. We think not. By the first section of the act constituting the board (P. L. 1891, p. 249; Gen. St. 1895, pp. 465-467, incl.), it was enacted that they "may make, establish, alter, modify or repeal such by-laws, rules and regulations, and pass such resolutions for the government of the proceedings of such board and the transaction of its business, as such board may deem advisable." Pursuant to this provision, the by-laws already referred to were adopted, and constituted the working regulations governing its action so far as not regulated by the higher authority of the statute; and, as the powers given by that statute do not include the power to suspend the by-laws, but only to alter, modify, or repeal them, it may well be doubted whether it would be competent to provide in the by-laws themselves for their temporary suspension, and still less to suspend them, in the absence of such provision. But on examination of the by-laws themselves we find no authority for suspending the provisions relating to passage of ordinances. By the last chapter, they may be amended at any regular meeting by affirmative vote of three members, on written notice given at the previous regular meeting. Chapter 16 of the 1903 edition (17 of that of 1905) is entitled "Rules of Order" and embodies regulations as to the order of business and conduct of meetings customary in such cases. Rule 23 of this chapter reads as follows: "No departure from the regular order of business nor suspension of any rule, shall be allowed, except by the acquiescence of a majority of the whole number of commissioners of the board." This rule is invoked by defendants as authorizing the suspension of section 2 of chapter 15 (16), requiring publication of ordinances between first and second readings; but in our view it refers only to the "Rules of Order" of which it is one, and not to the other by-laws. If this were not so, it would be practicable by a vote of three at any meeting, without notice, to nullify the fundamental provisions relating to the permanent officers and their duties, management of finances, giving out of contracts for public improvements, and payments for same, bonds of officials and employés, and so on. All these matters, as also the provisions relating to the passage of ordinances, are the subject of separate chapters, and properly so, as they bear on the inter

rendered nugatory by the suspension of a mere rule of order, the by-laws are little more than a suggestion, instead of being, as they should be, a set of regulations for the transaction of public business by a public body, on which regulations the public itself has a right to rely. The more radical proposition is also advanced that, as the vote was unanimous to suspend the by-law and pass the ordinance, no one can be heard to complain; but this likewise loses sight of the right of the public to expect that ordinances, involving as they do the interests of the public, shall be enacted in due form as provided by law, and that part of that law is the regulations adopted and promulgated by the legislating body. The ordinance in question was one in which the public were vitally interested. It involved the privileges in the streets of a vast system of street car lines, the terms and method of their payment for such privileges, the applicability of those terms to future lines within the existing city limits, and present and future lines in territory which might be subsequently annexed, and the perpetuation of certain limited franchises; thus tying the hands of future boards in their dealings with the street railroads and surrendering claims previously asserted as valid. It is said, and may be true, that valuable concessions were made in return by the railroads to the city; but this in no way disproves the facts that the transaction was one of very great importance to the city and its people, and that its revenues and the right to use of its streets were involved, for both present and future. Public rights may not be dealt with in such offhand fashion. It is doubtless true, as claimed, that very careful consideration was given to this ordinance and the contract it purports to ratify, both before and at the meeting, by the commissioners themselves and other city officials; but this again does not answer the proposition that the public have a right to rely on the pursuit of the orderly course of procedure as to passage of ordinances, as laid down in the by-laws of the board. In Hicks V. Long Branch Commission, 69 N. J. Law, 300, 54 Atl. 568, 55 Atl. 250, the Court of Errors and Appeals, reversing the Supreme Court, held that a resolution involving the expenditure of money should be set aside for mere failure to comply with a rule requiring the yeas and nays to be recorded, basing the decision on the right of the public to know the votes of individual members and to hold them accountable therefor. So in this case, if the ordinance had been advertised as required by the by-laws, and the public thereby apprised of what was contemplated, material benefit to the city might have resulted. In any event, by nonpublication the citizens and taxpayers were deprived of their right to know what was being done and to express