123 Pa. 170 | Pa. | 1889
OPINION,
two to the validity of the bond sued upon, and to the measure of damages. The bond in question purports to have been executed by the Pennsylvania Natural Gas Company, and by the United Gas Fuel Company, and was given to the plaintiff below, to indemnify him against “ all damages of whatsoever nature or kind that may be suffered or sustained by said Cook by reason of the excavating for, putting together, burying, constructing, completing-, and repairing a line or lines of gas pipe, through:, the bed and waters, and up the shore and bank of the Allegheny river, at the eddy or landing now occupied by said Cook, at the foot of School street, in the city of Allegheny, and through the mill and lumber yard now occupied by him, adjoining said eddy and landing, said damages to be paid forthwith upon the completion of such line across said river as far as Killbuck street, Allegheny, and immediately on completing any repair or repairs.”
This bond ivas signed Company, “by B. F. Rafferty, General Manager,” as also by the said Rafferty individually; and on behalf of the United Gas Fuel Company, “ by J. M'. Guffy, president,” attested by “ J. M. Cooper, secretary.” The seal attached in each instance was an ordinary scroll. The action below was debt and the plea nil debet. The ¡dea of non est factum was added upon the trial. When the bond was offered in evidence it was “ objected to as incompetent and irrelevant, and no proof of title in the plaintiff, and because the lease in question shows
None of these objections was sufficient to exclude the bond. The last one has the most force, but even that is slight. There was no need of any formal statutory proceedings to condemn this property and assess the damages. The defendant company might have proceeded under the statute to file a bond in court and have a jury appointed to assess the damages. Instead of doing so a voluntary bond was tendered to and accepted by the plaintiff, and the company entered at once upon his property and laid their pipes. In doing so they recognized plaintiff’s title and right to damages.
After the plaintiff had closed his case the counsel for defendants made the further objection to the bond, that it was not under the seal of the Pennsylvania Natural Gas Company, and that as to the United Gas Fuel Company, the bond is ultra vires and void, there being no proof of any power in the president and secretary of said company to execute such bonds. At the time these objections were made, the bond had already been admitted in evidence, and properly so, for anything that appears in the case. The second objection, therefore, came too late. The only remedy in case it had been improperly admitted, was to move to strike it out. This was not done.
We are not clear, however, that had such a motion been made it would have availed the defendants. The contract was executed. The defendants had availed themselves of the consideration. They had obtained all they needed from the plaintiff, and the objection that the bond was executed without authority of the respective corporations came with an'ill grace at such a late hour. There is a long series of cases — some of them very recent, to which I need not refer specifically — that when an agent exceeds his authority, his principal cannot avail himself of the benefit of his act and at the same time repudiate his authority. This principle rests upon the solid foundation of natural justice and common honesty. There was no proof whatever in regard to the seals. It is said in Angelí & Ames on Corporations, § 226 : “ The signature of the agent
The only remaining question to which I refer is that of damages. This is raised by the 1st, 2d, 4th, 8th, 11th, 12th, and 14th assignments. We see no error in the rulings of the learned judge below upon this point. He merely enforced the rule adopted by the parties themselves, and expressed in the bond. That instrument covered “ all damages of whatsoever nature or kind that may be suffered or sustained by said Cook.” This is broad enough to embrace all damages allowed by the court. The parties might have stipulated for a narrower rule, but they did not, and we do not sit here to make their contracts for them.
Judgment affirmed.
