[3] It is further insisted that the trial judge erred in refusing to nonsuit the plaintiff, upon the ground urged by the appellant that there was no proof of the quantity of bricks delivered. The motion was properly denied. We think there was proof of the quantity of bricks delivered not only by the calculation made by the witness as based upon the number of yards of brick laid by the defendant at Bayonne and Westfield, but also from the undisputed fact that bills and statements for the brick were rendered by the plaintiff to the defendant, who made no objection to their accuracy and paid on account and had repeatedly promised to pay the balance, the amount sued for.

tiff gave the defendant notice that he would | nished their goods under a written contract. move to amend his declaration in conform- At the time the plaintiff made the applicaity to a copy served with the notice. This tion to amend, there was no evidence to that he was permitted by the court to do. The effect. The issue tried was that raised by amended declaration contained the common the original declaration and the pleading by counts and also set up two written contracts the defendant thereto, and we are therefore which were annexed to and made part of it. | unable to discern how the defendant was The record does not show that any plea was harmed or prejudiced by the procedure purfiled to the amended declaration, but it does sued. appear that, in answer to the plaintiff's demand for a specification of defenses, the defendant specified that the goods sued for were never delivered to the defendant; that the defendant did not contract the debt; that the goods were not contracted for at the prices specified and were of inferior quality and not in accordance with the terms of the contract, and hence caused loss and damage; and that there could be no recovery under the common counts. When the case came on for trial, plaintiff's counsel stated to the court that he was doubtful whether he could prove the written contracts and that, if he could not, he would ask to amend by substituting the original declaration. The plaintiff, during the trial, made an effort to prove the execution of the written contracts, but failed in showing that the person who signed for defendant was authorized. It seems that the defendant had made out what purported to be two written contracts, one of them for Bayonne and the other for Westfield; that they were mailed by the defendant and signed, not by the defendant but by his son, who, being called as a witness by the plaintiff, testified that he had no authority from the defendant to sign the defendant's name to bind him to the contracts, and thereupon the plaintiff asked leave to amend and proceed under the original declaration, which was permitted, by the trial judge, against the defendant's objection.

It is now urged before us by appellant that the trial judge erred in allowing the amendments. When the plaintiff first applied to amend his declaration, by declaring, in addition to the common counts, upon the written contracts, it was allowed over an objection made by the defendant that the court had no power to permit it.

When, during the trial, the application was made to amend the declaration by striking out the special counts and thereby to restore the declaration to its original state, it was opposed by counsel of defendant upon the ground that the plaintiff furnished their goods under a written contract.

[1] The declaration, by the second amendment, having been restored to its original state, the question as to the power of the court to make the first amendment ceases to be of any vital importance.

It is also urged that there was error in directing a verdict for the plaintiff. As has already been observed, there was testimony that the defendant had repeatedly promised to pay the bill. This evidence stood uncontradicted. There was no disputed question of fact to be submitted to the jury. The direction of a verdict, therefore, under the circumstances, was proper.

[4] It is further urged that the trial judge erred in refusing to admit the two contracts, attempted to be proven by the plaintiff. They were offered in evidence by the defendant after the plaintiff had been unable to prove their execution by the defendant, and they were not offered as contracts executed by the defendant, but simply as statements signed by the plaintiff. They were undoubtedly signed by the plaintiff, but they were signed by it for the purpose of making a contract, and, when the defendant challenged the authority of his son to execute them on his behalf, there was no contract. Since the defendant repudiated the contracts as binding upon him, their contents were not evidential, without any proof that the parties recognized and adopted the stipulations contained therein, so that they might be bound thereby. The defendant was not entitled to use the proposed contract against the plaintiff, without himself consenting to be bound thereby. The offer was properly overruled.

[5] The final ground urged why the judgment should be reversed is that the court erred in excluding testimony of the representations made by the plaintiff's agent as [2] It appears from the record that, when to the quality of the bricks at the time the the plaintiff announced that he would apply oral contracts were made. This evidence did to amend his declaration, counsel of defend- not relate to any representations made to ant stated that he would not plead surprise the defendant for the purpose of obtaining or anything of that kind and placed his ob- a contract with him. It related to the efjection on the ground that the plaintiff fur- forts of the plaintiff's agent to specify his

principal's bricks as those to be used, and, when the city so specified, then, when the defendant supplied what the contract called for, he had performed his contract, and he was not responsible for the quality of the material which the city had itself contracted that he should use. In addition to this, there is no proof or offer of proof that the city in any way objected to the character of the material furnished. The defendant's son was asked whether the work was stopped because of trouble they had with reference to the bricks, and his answer was, "Yes." There was no proof of what the trouble was. It may have been delay in delivery, and the mere fact that the work was stopped does not justify the inference that it was because of the quality of the bricks.

The judgment should be affirmed.

WALKER, Ch., and GUMMERE, C. J., and SWAYZE and PARKER, JJ., dissent.

(86 N. J. L. 290)

so ascertained shall be added or deducted from the contract price."

The plaintiff supplied material to the contractor for use in the building, to the amount in value of $904.55. The contract provided for a first payment of $500 when the foundation was laid, and a second payment of $500 when the stucco work was completed, the third and fourth payments in other contingencies, and to a fifth and final payment of $922. The contractor received the first, third, and fourth payments, but not the second, which he waived as the result of an agreement with the owner and the architect, pursuant to the above-quoted provision, that the contractor should omit the stucco work, the owner would assume its performance himself, and in consideration of this the sum of $725 was deducted from the contract price.

The plaintiff bases its claim upon a stop notice served upon the owner in compliance with the third section of the Mechanics' Lien Act (3 Comp. St. 1910, p. 3294). The plaintiff made the necessary proof of the delivery of the material, and the service of the stop no

BUILDERS' MATERIAL SUPPLY CO. v. tice. The facts upon which the claim is based

SCHOEN. (No. 60.)

are not in question, nor is it denied that

(Court of Errors and Appeals of New Jersey. the contract was altered by eliminating the

July 10, 1914.)

(Syllabus by the Court.)

MECHANICS' LIENS (§ 115*)-RIGHT TO LIEN-
CHANGE OF CONTRACT-STOP NOTICE.

Where the owner and contractor, by agreement in accordance with the terms of the filed contract, change the terms of payment contained therein, by allowing the owner to undertake a part performance himself, thus eliminating one of the payments specified in the contract, held, that such a change was not an alteration of the contract, but was within the contemplation of the parties in interest as subcontractors and otherwise, and that where the plaintiff claimed upon a stop notice, based upon such changed payment, the direction of a verdict for the defendant under the circumstances was proper.

[Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. §§ 150-159; Dec. Dig. § 115.*1

second payment, and by an agreement which empowered the owner to otherwise contract for the doing of the work covered by that payment.

The defendant's liability is sought to be rested on section 5 of the Mechanics' Lien Act, relating to payments in advance of the terms of the contract, and on the proposition that the making of the third payment before the stucco work was done constituted such an advance payment.

The learned trial judge directed a verdict for the defendant, basing his determination principally on the case in this court of Smith v. Dodge & Bliss Co., 59 N. J. Eq. 586, 44 Atl. 639. We think this action was correct.

The language of Mr. Justice Van Syckel speaking for this court in that case says:

question cannot operate to diminish the sum in
"It is obvious, therefore, that the order in
the hands of the owner, **
and thereby
to defeat the inchoate lien of the material-
man unless the contract itself reserves the right
to the parties to change it at their option. In
that event the materialman and workman must
give credit to the contractor at their peril, and
are without this inchoate right of lien, or,
more strictly speaking, are subject to have that
right taken away by a change of the contract
without their consent."

Such was the situation in the case at bar. The right to change the contract in the particular referred to by agreement between builder and owner was expressly reserved, and the only complaint urged here is that the parties to the contract availed themselves of that provision of the contract, without notice to the plaintiff and others interested as materialmen and subcontractors.

MINTURN, J. The defendant, who was owner of certain land in Newark, contracted with R. M. Barbutti to erect a building upon the land. The contract which was duly filed in the county clerk's office was in the usual form of building contracts, and contained the provision that no alteration should be made in the work, "except upon written order of the architect, and when so made, the value of the work added or omitted shall be It should suffice to say that the justificacomputed by the architect and the amount tion for the change was the contract itself,

and that the plaintiff therefore is practically mine that the language of Mr. Justice Van estopped from denying that the authority for Syckel contained in Smith v. Dodge & Bliss the change existed if the parties to the con- Co., supra, is dispositive of the case at bar, and tract deemed it necessary to make it. to hold that the very act complained of here as an alteration, and therefore subversive of the contract, was but the exercise of a contractual right, which the parties in interest, including this plaintiff, must be held to have contemplated when they entered into subcontracts, based, as we must assume, upon a tacit assent to the provisions of the principal contract containing the provision in question. The judgment will be affirmed.

The argument in opposition to the legal correctness of this principle is based upon a construction given to the language contain ed in the opinion of the learned Chief Justice speaking for this court in Coles & Son Co. v. Lothridge, 81 N. J. Law, 406, 80 Atl. 484, which it is urged must be held in effect to determine that any alteration whatever of the provisions of the contract, whether consented to by the parties in interest, or not, must be held to operate as eliminating the contract in toto from the case, and leaving the parties to their statutory right of lien. We do not so construe that case, and it is manifest that the reasoning contained therein must be limited by the facts to which it was applied.

(86 N. J. L. 105) PUBLIC SERVICE RY. CO. v. BOARD OF PUBLIC UTILITY COM'RS et al.

(Supreme Court of New Jersey. July 10, 1914.)
(Syllabus by the Court.)

STREET RAILROADS (§ 31*)-USE OF BRIDGE-
COMPENSATION-ORDER OF PUBLIC UTILITY
COMMISSIONERS-REVIEW.

The subject of complaint in that case was that the owner, under an arrangement with An order of the board of Public Utility the builder, made advance payments to him Commissioners, fixing the compensation to be in consideration of a discount thereon allow-paid by the Public Service Railway Company, for the use of the Clay Street Bridge over the ed to him by the builder for that accommoPassaic river, made in pursuance of the prodation. Plainly such conduct was in clear visions of P. L. 1913, p. 777, held not unreaviolation of the terms of the contract, as well sonable. as a contravention of the terms and spirit

der of such board. Order affirmed.

Argued February term, 1914, before GARRISON, TRENCHARD, and MINTURN, JJ.

[Ed. Note.-For other cases, see Street Railof the Mechanics' Lien Act, and in practical roads, Cent. Dig. §§ 67, 68; Dec. Dig. § 31.*] effect subserved the purpose of enabling the Certiorari by Public Service Railway Comprincipals to the contract by secret agree-pany against the Board of Public Utility ment to defraud the subcontractors and ma- Commissioners and others to review an orterialmen, whose rights were, so to speak, pinned to the provisions and guaranties of the contract. No such subversive result can be attributed to the contractual privilege of which the parties availed themselves here. The contract itself, which in practical effect was the chart by which all subsidiary parties in interest had adjusted their obligations and shaped their course, held out this privilege to the principal contracting parties as a right of which they might avail themselves during the progress of the work, should circumstances require recourse to it.

The insertion of the provision in the contract cannot be said to be unreasonable or intended as a basis for fraud, since it is of the stereotype order of covenant peculiar to such contracts, and intended to answer the reasonable changes of design or convenience which an owner may deem necessary during the progress of the work. No one in interest could be said to be deceived by the change; none defrauded by a course of action, to which all in practical effect had in limine acceded and contemplated.

Benjamin F. Jones, of Newark, for Essex County. Joseph M. Noonan, of Jersey City, for Hudson County. Frank H. Sommer, of Newark, for the Board. Frank Bergen, of Newark, for prosecutor.

MINTURN, J. The question involved in this case is the reasonableness of the order of the Public Utility Commissioners, requiring the defendant to pay the sum of $2,614.46 annually, one half to the county of Essex and the other half to the county of Hudson, for the use of the Clay Street Bridge spanning the Passaic river and connecting Clay street, Newark, with Central avenue in East Newark.

The authority to fix the compensation is contained in P. L. 1913, p. 777. The power of this court to review the order by certiorari, thus made, is contained in section 38 of the Public Utility Act (P. L. 1911, p. 388), and the power to set it aside so far as the

facts are concerned is contained in the statutory limitation:

"When t clearly appears that there was no evidence before the board to support reasonably such order, or that the same was without the jurisdiction of the board."

The instances, which may be cited where the principle invoked by the learned Chief Justice as dispositive of the Lothridge Case was applied, will be found to be cases where to hold otherwise would in legal effect be tantamount to declaring that the Legislature by this remedial enactment intended to lend Its aid to the indirect perpetration of a fraud. It is enough for present purposes to deterFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

In giving effect to that section we are not unmindful of the recent adjudication of this court in Erie Railroad v. Board of Public Utility Commissioners, 89 Atl. 1001, filed Feb

We are unable to accede to the contention that this sum is unreasonable in the light of the testimony, and we think it is entirely supportable by the facts and the testimony.

ruary 24, 1914, vindicating the right of this | for depreciation, due to the shortened life of court upon certiorari to review the facts un- the structure in use, and a final item for cost der the provisions of the Certiorari Act; but of maintenance, based upon this use, making we do not read that deliverance as in effect a total of $2,644.46. nullifying the legislative intent contained in the section of the Utility Act under consideration, since it is well settled that the ruling of a state railroad commission made in accordance with law, after an investigation of the facts, may be made final by legislation as to the facts. Buttfield v. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525; Bates Co. v. Payne, 194 U. S. 106, 24 Sup. Ct. 595, 48 L. Ed. 894.

Since at common law the writ of certiorari was intended to review only the regularity and legality of the record of the lower tribunal, and not to settle disputed facts (1 Tidd. Pr. 399; Wilson v. Hudson, 32 N. J. Law, 365), the Legislature, in conferring the power to review the facts by the eleventh section of the Certiorari Act, must be held not to have conferred an inextinguishable or irrepealable power of review. The eleventh section of the Certiorari Act (1 Comp. St. 1910, p. 405) and the thirty-eighth section of the Utility Act must therefore be read as in pari materia.

The contention of the defendant denying the jurisdiction of the board to impose payment of compensation upon the defendant, we are not required to consider, since the act of 1913 specifically confers that power upon the board, and the defendant has by its stipulation in this case admitted that it "has no legal authority to lay its tracks on such bridge or cross the same," thus conceding to the board the necessary jurisdiction to make the order under review.

The order of the Board of Public Utility Commissioners will therefore be affirmed.

(86 N. J. L. 35)

In re DE VENGOECHEA. (Supreme Court of New Jersey. July 15, 1914.) CORPORATIONS (§ 181*)-RIGHTS OF STOCK

HOLDERS-INSPECTION OF Books.

Such in effect was the construction given to these sections in a case involving the exercise of the power of mandamus by this court. Eastern Telephone, etc., Co. v. Board of Public Utility Com'rs (Sup.) 89 Atl. 924. We are persuaded therefore to conclude that what the Legislature intended in the enactment of both sections was essentially similar, i. e., to concede to this court a pow-plicant acquired his stock. er to review the facts, but to set aside the order only upon concluding that the evidence upon which the order rested is not such as will reasonably support it, thus placing the appeal by certiorari upon the same status, relatively, as a district court appeal. Where in such case there is evidence upon which the lower tribunal may reasonably infer the result attained, we will not disturb it. Warren v. Finn, 84 N. J. Law, 206, 86 Atl. 530. But whether we review the facts in this case under the eleventh section of the Certiorari Act, or under the language contained in the thirty-eighth section of the Utilities Act, our conclusion in this case must be identical.

Where all of the other stockholders of a corporation approved the acts of its officers, a minority stockholder who occupied a position antagonistic to its interest and was friendly to a competitor, will not be granted mandamus to compel the officers to allow inspection of the gation against the corporation, where the only books by counsel employed by him in other liticharge of bad faith against the officers of the company was the purchase of property which was not shown to have occurred after the ap

[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 674-682, 685; Dec. Dig. § 181.*] In the matter of the application of Manuel A. De Vengoechea for a writ of mandamus.

The question presented involved an inquiry into the mooted proposition whether the added weight, and use of the trolley car, upon the bridge, tended to shorten the life of the structure, and what financial return to the counties, if such were ascertained to be the fact, would be fair and equitable as compensation for the superimposed loss.

The board heard testimony as to the facts, and considered the testimony of eminent experts, and worked the problem out upon a basis which allowed a certain sum for interest on the extra cost of construction made necessary by the added service, another sum

Writ denied.

Argued before SWAYZE, J., sitting alone under the statute.

Franklin W. Fort, of Newark (Fort & Fort, of Newark, on the brief), for the application. Robert H. McCarter, of Newark, and Louis Marshall, of New York City (Frederick R. Swift, of New York City, on the brief), opposed.

SWAYZE, J. I do not find it necessary to consider the very interesting and important legal question that was argued as to the limitation of the common-law right of a stockholder to examine the books of a corporation, by provisions inserted in the articles of association. I have reached the conclusion that the application is not made in good faith for the purpose of ascertaining the true status of the company, or of taking measures to protect the interests of the applicant as a stockholder, but rather for the purpose of annoying the company and perhaps assisting the applicant in his pend

ing litigation against it, which is aside from officers and directors of the United Fruit his interest as a stockholder.

Company, from which the latter acquired the properties, is a charge that would require investigation and justify action by the court if it were properly sustained by the proofs. It is, however, made solely upon information and belief, the source of which is not disclosed, and the date of the transaction is left uncertain. So far as appears, the Unit

The list of questions submitted to the company as to which he desired information is long, and not only covers a large part of the company's operations in Costa Rica and Colombia, but seeks for information as to the actual value of properties already owned by the company which cannot be ascertained from the books, and in the case of many prop-ed Fruit Company acquired these properties erties was, moreover well known to the applicant. The attempt to have the examination conducted by counsel who were employed by the applicant in litigation adverse to the company is an indication of hostility, and leads me to believe that threats were in fact made by the applicant against the company as testified to in the counter affidavits. The threat to use against the company letters which seem to have been stolen from its files, instead of calling the attention of the company to the theft, and revealing the source from which he obtained the copies, lead me to believe that he is inimical to the company. His relations with the Atlantic Fruit & Steamship Company evince a willingness to help a competitor, not consistent with the interests of the United Fruit Company.

within a few months after "the early part of the year 1912"; that is, probably before the applicant became a stockholder, which was not until August, 1912. Whether he bought his stock with knowledge of this transaction is an important circumstance in determining whether the discretion of the court to award a mandamus shall be exercised in his favor. The knowledge of the fact rests in his breast alone, and he has not chosen to make it known. Serious as the charge is, I am not willing in the state of the proofs to throw open to the applicant the books of the company, certainly without the approval and apparently against the wishes of his fellow stockholders who have, by formal resolution from which the applicant alone dissented, approved the acts of the officers of the company.

The charge that the company has acquired various other banana plantations at excessive prices imputes at most only bad judgment to the responsible officers, and not necessarily even that. The depreciation is said to be due to the fact, as the applicant says, that the plantations are affected with the banana disease, or with a saline impregnation known as salitre. Whether the condition existed at the time of the purchase or arose afterward, whether it was known or ought to have been known to the officers of the company, does not appear. No doubt in transactions as numerous and as large as those of the United Fruit Company mistakes are made, and the company's agents are sometimes deceived. That fact would not necessarily show mismanagement, and the

The fact that his holdings of stock are small compared with the whole amount outstanding is, of course, of no importance. It is the duty of the courts in a proper case to protect minority stockholders; but the power to order an inspection of books is so great, its exercise may affect unfavorably so many innocent stockholders, and may cause such inconvenience or perhaps such ruinous results to a corporation whose operations are so extensive in two continents, that the court ought to exercise the power with the greatest care, and only when a case is presented which indicates, not only a bona fide desire to safeguard the interests of all stockholders, but a probability that the interests of all will be served by the proposed investi gation. It is a striking fact that, although this effort of the applicant to secure an inspection of the books has been pending sever-long-continued success of the company inal months, and although he had the opportunity at the annual meeting in 1913, at which the stockholders were largely represented by more than 70 per cent. of the total stock outstanding, and although the applicant then raised questions as to the conduct of the directors and officers, he stood alone In one case it is conceded that the comin his disapproval of their acts, and the in-pany paid more for a plantation than it tervening time has brought no other stock- was worth; but it is shown that other conholder to his aid. In such a case the court ought to consider with even greater care than usual the grounds alleged for an inspection. The charge that banana plantations were bought at an excessive price, that the Lindo Fruit Company, which owned them, was controlled by officers and directors of the United Fruit Company, that the Lindo Company sold to an English corporation also controlled by

dicates good management. The drop in the stock exchange value of its stock is no more than happens in the case of stock of the best managed corporations due to fluctuations in general market conditions entirely outside the control of the company.

siderations valuable to the company were involved. The effort of the applicant to make a case by the use of a portion only of Mr. Schermerhorn's entirely frank letter, and by concealing an essential portion, does not commend him to favorable consideration.

The applicant himself avers that he had personal knowledge of these transactions, or had seen copies of the deeds recorded in