struct, operate and maintain lines for the of the maintenance of any of the poles of transmission of electricity for furnishing the party of the first part which the party light, heat and power, including the neces- of the second part thus occupies in Houston sary poles, wires and fixtures, upon, along borough.' and over the streets, lanes, alleys and highways within the limits of the borough of Houston, subject to the general regulations of said borough.' The second section provides that 'all poles erected under this ordinance shall not be less than twenty-five feet in length from the curb line and located under the direction and supervision of the street committee of council and where required by said committee and in constructing said line and making repairs to the same the work shall be done in such manner as to interfere as little as possible with the free use of the streets, alleys and highways of said borough,' and provides further 'that no wire shall be strung under the provisions of this ordinance nearer to the surface of the ground than twenty-five feet, except by special permission in writing from the street committee. Under this ordinance, and under the supervision of the street committee or com missioners of the borough, the electric light, heat and power company constructed its lines from the south line of the borough along Grant street to North avenue, down North avenue to Pike street, and from Pike street to the northern boundary of the borough, and have been, since its construction some months before the filing of this bill, operating said line.

"(7) On the 27th day of August, 1909, the Canonsburg Electric Light, Heat & Power Company entered into a written contract with the Washington & Canonsburg Railway Company, whereby the right was given to the electric light and power company to erect its poles along the line of the railway company's track and on their right of way between Washington and Houston borough, and between Houston borough and Canonsburg. The fifth paragraph of that agreement, which covers a number of matters not relevant to this case, provides as

follows: The party of the first part [that is, the electric company] hereby agrees to permit the party of the second part [that is, the railway company] to erect upon the main line of poles of the party of the first part [that is, the electric company] carrying its high tension line or lines through the borough of Houston not to exceed two sets of three wires each in the same relative location on such poles as the high tension lines that the two companies occupy along the route from Tylerdale to Meadowlands upon condition that the party of the second part pays the party of the first part for the cost of all the poles and the setting of the same which the party of the second part thus occupies in said borough, and the party of the second part is to pay one-half the expense of the cross-arms necessary for

"(8) Some time before the filing of plaintiff's bill, the Pittsburgh Railways Company, which operates the street railway line, desired to string another high tension line through the borough of Houston, and in doing so, in place of following the line of their track from the corner of Main and Grant street down Main street and along Pike street to the corner of Pike street and North avenue, they strung the line, under the con tract just referred to, on the poles of the electric light, heat and power company, which were erected from the corner of Main and Grant streets along Grant street to North avenue, and down North avenue to Pike street, where connection was made with the line along the track of the railroad. The stringing of this line was finished (but no current of electricity passed through it) on the 2d day of September, 1910, the same day that the plaintiff presented its injunetion bill in this case, praying that an injunction be awarded preliminary to final hearing, and thereafter to become perpetual, restraining the said Washington & Canonsburg Railway Company and the said Pittsburgh Railways Company, defendants, from attaching their wires, or the wires of either of them, to poles or otherwise permanently locating them on or within that portion of

Grant street, in the said borough of Houston, lying between Main street and North avenue and that portion of North avenue ly

ing between Grant street and Pike street in said borough, and from passing currents of electricity through the said wires while located on the portions of streets last above designated; and also praying that the said defendants be required to remove the wires already strung, as aforesaid, along said por

tions of Grant street and North avenue. The court, on the presentation of the plaintiff's bill and the necessary injunction af

fidavits and bond, granted the usual five-day injunction, and at the time fixed for hearing the plaintiff moved the court to continue the injunction granted as a preliminary injunction until final hearing; and the question now for decision on the facts found is

whether
granted.

or not this motion should be

"Conclusions of Law.

"First. That the contract of August 27, 1909, by and between the Canonsburg Electric Light, Heat & Power Company and the Washington & Canonsburg Railway Company, referred to in the seventh finding of fact, was authorized by the provisions of the act of assembly, approved March 19, 1903 (P. L. 34); and under that contract the defendants had a right to string their wires upon the poles of the electric light, heat and

Grant street and down North avenue to conflicted with the provisions of the act of Pike street-it not appearing in the evi- | 1903, which provides that nothing in the act dence that in stringing said wire they in contained shall be construed to give any any way violated any of the provisions of Ordinances Nos. 10 or 27.

"Second. That the plaintiff's motion to continue the preliminary injunction until final hearing should be refused.

"Comments.

"The act of 1903 provides as follows: 'Section 1. Be it enacted, * that it shall and may be lawful for corporations for what purpose soever formed and law fully using electrical current within this commonwealth, to enter into contracts with each other for the use of the same poles, wires and conduits, or for the purchase and sale of electrical current, or for the lease and operation of each other's systems, on such terms and conditions as they may agree upon: Provided, that nothing in this act contained shall be construed to give to any company any rights to erect or maintain poles, wires or conduits upon any street or road not already so occupied, unless the consent of the local authorities shall have been first obtained.'

company any rights to erect or maintain poles, wires, or conduits upon any street or road not already so occupied, unless the consent of the local authorities shall have been first obtained. Clearly the two routes to which we have referred were already occupied by the two contracting parties, and occupied for one and the same purpose, to wit, the carrying of electric wires on poles for the purpose of transmitting electricity, which was to be used to furnish power; and, as there is no allegation in the bill, and as there was no evidence produced at the hearing which shows, that this wire of the railway company, which was strung on the poles of the electric company, was strung in a manner to offend against the terms of either of the ordinances to which we have referred, we are clearly of the opinion that the plaintiff is not entitled to the preliminary injunction for which it prays."

Exceptions to the adjudication were dismissed, and a decree filed dismissing the bill.

Argued before FELL. C. J., and BROWN, MESTREZAT, POTTER, ELKIN, MOSCHZISKER, and STEWART, JJ.

PER CURIAM. The decree dismissing the plaintiff's bill is affirmed on the opinion of Judge McIlvaine.

(234 Pa. 280)

"It will be observed: (1) That both of these corporations had a right to string wires on poles through the borough of Houston for the purpose of carrying electric currents for Irwin Cummins and Boyd & E. E. Crumthe furnishing of power. (2) That the dis-rine, for appellant. R. W. Irwin and James tance from the corner of Main street and A. Wiley, for appellees. Grant street to the corner of North avenue and Pike street was about 1,800 feet, whether you went down Main street and along Pike street, the way the railway track ran, or down Grant street and along North avenue to Pike street, the way the electric light, heat and power company's poles ran. (3) That the railway company had a right to string such wires as they thought were necessary to carry the current required to operate their road between the points named, and also that the electric light, heat and power company had a right to string similar wires to carry electricity to furnish power, such as they might think was necessary. (4) That the routes from the corner of Main and Grant streets to the corner of Pike street and North avenue, whether you went by the way of Main street and Pike street or went by the way of Grant street and North avenue, had erected thereon and were occupied by poles and wires used for one and the same purpose.

"This being the case, the traveling public on these different streets would be interfered with just the same, and for the same distance, whether the line was strung on the poles of the railway company following the line of their track, or on the poles of the electric company along the route that they occupied; and, in our opinion, what was done by these two companies, under the contract that existed between them, in no way

Appeal of BORLAND et al. (Supreme Court of Pennsylvania. Jan. 2, 1912.) 1. EXECUTORS AND ADMINISTRATORS (§ 509*)—

ACCOUNTING-Decree-BILL FOR REVIEW.

At the death of a partner who was indebted to the firm, the indebtedness having been carried on the books for some time and finally charged to profit and loss, written notice was given to his widow and to his administrators of the indebtedness, without any reply from them. Among the papers of the firm, there came into the possession of the administrator c. t. a, of a surviving partner a paper, described as an agreement between the partner first mentioned and the decedent of the administrator c. t. a.. and also described as "notice of dissolution." This agreement The was subsequently lost. two decedents were not interested together in any other venture. Held, that the widow and children of the first-mentioned partner have no standing to maintain a bill of review to open a to the distribution of assets after the filing of decree confirming the report of an auditor as an account by the administrator c. t. a., which petition was not filed until 26 years after the death of the husband and father of petitioner and 4 years and 9 months after the absolute confirmation of the auditor's report.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 2199-2219, 2233, 2234; Dec. Dig. § 509.*]

2. EXECUTORS AND ADMINISTRATORS (§ 509*)-[1905, and distribution was thereupon made ACCOUNTING-DECREE-BILL FOR REVIEW. by the accountant. On July 27, 1910, more A petition by the widow and children of a deceased partner for review of a decree confirm ing an auditor's report as to distribution of assets after an accounting by an administrator c. t. a. of a surviving partner is barred by limitations, where it is not filed until 26 years after the death of petitioners' decedent and 4 years and 9 months after the absolute confirmation of the report of the auditor.

Appeal from Court of Common Pleas, Al-enable them, or the estate of their decedent, legheny County.

to participate in the distribution of the assets admitted by the accountant to have been in its hands as the representative of Bailey, the surviving member of the firm. Two material averments in the petition were that no settlement had ever been made for the partnership share or interest of David Borland in the firm of Phillips, Nimick & Co., and the petitioners had no notice of the STEW-filing of the account by the administrator of the surviving partner or of the distribution made by the auditor until July 15, 1910.

Morton Hunter, for appellants. Richard H. Hawkins and John E. McCalmont, for ap-firm of Phillips, Nimick & Co. on March 3, pellees.

after the unusually great lapse of time in presenting their petition for it, could not have been granted by the court below, unless there was first clearly established the membership of the deceased in the firm at the time of his death. This fundamentally material fact was not so established; and the petition was properly dismissed for the reason stated in the above-quoted extract from the opinion of the court.

in the firm at the time of his death grows out of the testimony that among the papers of Phillips, Nimick & Co. that came into the possession of the appellee was an "agreement between David Borland and J. M. Bailey, and notice of dissolution." This agreement was lost; and the court below, though not having the benefit of its contents. assumed that it related to the affairs of Phillips, Nimick & Co., as it was among the papers of that firm; and it did not appear that Borland and Bailey were interested together in any other business venture. Commenting on the testimony as to this lost agreement, a conclusion of the learned chancellor, not assigned as error, is as follows: "Standing alone, it would not be sufficient to establish the transfer, but, considered in connection with the delay in making claim, especially for 5 years after the death of the last surviving member of the firm, and 26 years after the death of Mr. Borland, it is at least sufficient to make the claim quite doubtful. If Mr. Borland did not part with his interest in the firm, why did not his administrator demand a settlement of the firm's affairs, or why did his heirs remain silent for 26 years after his death? The extreme laches on their part has not been satisfactorily explained. The law does not look with favor on stale claims; and in view of the fact that petitioners had at least constructive notice of the filing of the account of the Fidelity Title & Trust Com-lution takes place, they stand no longer in pany, and of the hearings before the auditor, together with the lapse of 21 years between the death of Mr. Borland and the filing of the account, without any demand for an accounting, we are of opinion that this request for a review comes too late."

The appellants may not have had actual notice of the filing of the appellee's account, nor of the report of the auditor making distribution, but they had constructive notice of each; for such notice was given by due legal advertisement, and this was sufficient. App et al. v. Dreisbach, 2 Rawle, 287, 21 Am. Dec. 447; Priestley's Appeal, 127 Pa. 420, 17 Atl. 1084, 4 L. R. A. 503; Ferguson v. Yard, 164 Pa. 586, 30 Atl. 517.

The relief asked for by the appellants,

[2] An additional reason given by the court below for dismissing the petition is that the statute of limitations bars the relief sought. Under the facts as developed, this was not error. There was no proof that Bailey had ever held himself out to the appellants or to any one else as a liquidating partner, having partnership assets in his hands, to a portion of which Borland's estate would be entitled on an accounting. On the contrary, everything done by him and Alexander Nimick subsequently to Borland's death was inconsistent with the admission of their partnership with him at the time of his death, and was in hostility to the claim now made by his widow and children. The statute, therefore, ran from his death. "And in reason and justice, why should not the statute close upon partners, who, for six years after dissolution, take no steps to ascertain the balance between them? On what principle should such an account remain open for all time? As soon as disso

any relation of trust or confidence to each other. The implied authority given by each to the other ceases, and they are no longer agents, one for the other; and, the objects of their association having come to an end, the time for a settlement has arrived. Six years is a fair time to allow for closing their affairs, and is a reasonable time for demanding a settlement as in an analogous case." McKelvy's Appeal, 72 Pa. 409. Other cases recognizing this rule are Hamilton v. Hamilton's Executors, 18 Pa. 20, 55 Am. Dec. 585; Guldin v. Lorah, 141 Pa. 109, 21 Atl. 504; Garretson v. Brown, 185 Pa. 447, 40 Atl. 293.

Appeal dismissed at the costs of appellants.

(34 R. I. 273)

J. P. MORGAN & CO. v. HALL & LYON CO. (Supreme Court of Rhode Island. May 14, 1912.)

1. CORPORATIONS (§ 484*) - POWERS-CONTRACT OF GUARANTY.

While a corporation is not ordinarily bound by a contract of guaranty for the benefit of third parties, such guaranty is binding when given to further any object for which the corporation was created, or when reasonably necessary or proper in the conduct of its business. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1815; Dec. Dig. § 484.*] 2. CORPORATIONS ($ 484*)-CONTRACTS-NOTICE-GUARANTY.

Where the act of the treasurer of a corporation in guaranteeing the payment of all money drawn on a letter of credit issued to a woman was an act which might have been reasonably necessary to carry out the purposes of the incorporation, the company issuing the letter was not put upon notice that the transaction was one of accommodation and that the act of the treasurer was ultra vires.

[Ed. Note. For other cases, see Corporations. Cent. Dig. § 1815; Dec. Dig. § 484.*] 3. GUARANTY (§ 89*)-ACTION-PRESUMPTION.

No. N for £200, or Fcs. 5,050, we hereby guarantee and agree, on demand, to pay said J. P. Morgan & Co. the amounts drawn against said letter of credit, together with usual charges. In case this credit be either lost or stolen, we hereby authorize J. P. Morgan & Co. to send the usual circular to their correspondents, notifying them of the loss, and to take such precautions as they may deem advisable for the prevention of fraud, agreeing to pay any expenses attending the same, and in case of the cashing of any drafts by any banker, under the usual precautions, and before the receipt of any circular, we agree to indemnify J. P. Morgan & Co. for any loss therefrom. Hall & Lyon Co., Geo. C. Lyon, Treasurer." The letter of credit was issued in August, 1907, and was for £200 sterling. Against this letter of credit six drafts were drawn, three of which drafts are still unpaid, to wit, one for £17. one for £54, and one for £100. The amount due on this letter of credit in United States money, at the then current rates of exchange, was $845.98, not including interest. The case was tried in the superior court without a jury, and a decision was rendered for the defendant, whereupon plaintiffs filed their bill of exceptions upon two grounds: (1) That the said decision was against the the evidence and the weight thereof. law; and (2) that said decision was against defendant contends that, the Hall & Lyon Company being a trading corporation, the act of its treasurer in signing the guaranty was without authority, and so simply an act for the accommodation of a third party to whom the letter of credit was issued, and therefore that it was ultra vires as to the defendant corporation, and also that the plaintiff took such guaranty with notice of its character. The plaintiffs deny both of these propositions, and claim: (1) That the guarAction by J. P. Morgan & Co. against the anty was issued by the treasurer of the deHall & Lyon Company. From a decision for fendant company under full apparent authordefendant, plaintiffs bring exceptions. Ex-ity to bind the defendant company; that his ceptions sustained, and defendant given an act was not ultra vires, there being no eviopportunity to show cause why judgment dence that such guaranty was for the accomshould not be entered for plaintiffs.

Where, in an action to recover upon a contract guaranteeing the payment of the amounts drawn against a letter of credit, it appeared that the party to whom the letter was issued had drawn the full amount for which it called, the presumption was that she drew the money under some arrangement made with its correspondents by the company issuing the letter.

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. § 102; Dec. Dig. § 89.*] 4. GUARANTY (§ 16*)-CONSIDERATION-LETTER OF CREDIT.

It was a sufficient consideration for a contract guaranteeing the payment of amounts drawn upon a letter of credit issued to a third party that the money stated in the letter was made available to the third party.

[Ed. Note.-For other cases, see Guaranty, Cent. Dig. §§ 14-17; Dec. Dig. § 16.*]

Exceptions from Superior Court, Providence and Bristol Counties; Willard B. Tanner, Presiding Justice.

The

modation of a third party; (2) that the

Dexter B. Potter and Edward A. Stock-plaintiffs took the guaranty in good faith well, both of Providence, for plaintiffs. C. M. Van Slyck and Frederick A. Jones, both of Providence, for defendant.

VINCENT, J. This is an action at law, brought by J. P. Morgan & Co. to recover from the defendant corporation damages for breach of its written guaranty of a letter of credit issued by the plaintiffs to Emily Alpers; the guaranty being signed by the defendant corporation, by its then treasurer, George C. Lyon. The guaranty is as follows: "Guarantee. Letter of Credit No. N- - New York, Aug. 19, 1907. Whereas, J. P. Morgan & Co. have given to Miss Emily Alpers their circular letter of credit,

without notice, actual or constructive, there being nothing surrounding the transaction to suggest inquiry as to the validity or purpose thereof; and (3) that the defendant knew that the guaranty was accepted in good faith, and in the belief that it would be recognized, and the drafts drawn on the letter of credit would be paid by the defendant, and there fore the defendant became bound to make such payment. There is nothing in the testimony tending to show whether or not Emily Alpers was in any way or manner connected with the defendant company.

[1] It is, no doubt, the general rule that a corporation is not ordinarily bound by a contract of guaranty for the benefit of third

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes