appellants' request for findings of fact and law; were not objected to by appellee on the ground stated, as he might have done under revised equity rule 62. The promise to pay the $25,000 annually, if earned, was the consideration for the transfer of the stock; and hence, in view thereof and of the irregularities pointed out at the beginning of this opinion and acquiesced in by both parties, we do not feel at liberty to dismiss the objections because not pleaded. [4] Manifestly, however, the last two are matters with which appellants have no legal concern, since they were not part of the "present organization" or "executive officers" of the company; and, moreover, the first thereof was a provision inserted for appellee's benefit, and the last did not bind him to accept any "bonus plan" which might be suggested, as indeed none ever was. [5] Does the fact that the contract does not state during what period the annual reservation of $25,000 is to be paid to the old stockholders wholly defeat appellee's title? Evidently McAdoo, as agent for appellants, did not think so, for he entered into the agreements of April 1, 1918, and February 15, 1919, both of which recited that appellee was the owner of all the stock; and he also directed the voting trust certificates to be issued to appellee. Evidently appellants did not think so, for they approved in writing the agreement of February 15, 1919, with the recital of appellee's ownership in it. Nor did they have any difficulty in accepting payments in accordance therewith, until all dividends ceased by reason of the filing of this bill. It is clear, therefore, that this claim is an afterthought, born of the improved condition of the company after its debts were paid by appellee, and we should be slow to destroy executed agreements of the parties, for reasons such as these, even though we would not specifically enforce them were they still executory. Geddes' Appeal, 80 Pa. 442; Lynch's Appeal, 97 Pa. 349; 1 Am. & Eng. Law, 516. [6-9] Nor is there any real difficulty growing out of the clause under consideration. Appellant's error arises from assuming that, because no period of duration is stated, the contract must be held void for uncertainty; whereas the courts will always deduce the term from the nature of the subject-matter if it is at all possible so to do. "The law does not favor, but leans against, the destruction of contracts because of uncertainty. Therefore the courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained. Though there are some formal imperfections in a written contract, still it is sufficient if it contains matter which will enable the court to ascertain the terms and conditions on which the parties intended to bind themselves. The maxim, 'Id certum est quod certum reddi potest,' applies." 6 Ruling Case Law, 645. "Apart from contracts which, from their inherent nature, imply a power of revocation, it would seem that the intention of the parties to an agreement that it should be perpetual and without limit as to duration could not be more properly expressed than by silence as to any time limit or power of revocation. Although there appears to be some authority to the contrary, the rule seems to be that, where no limitation is expressed in the agreement, neither party can terminate it without the consent of the other, unless the making of the contract itself indicates with sufficient clearness that the parties must have intended some other determination." Id. 895. [10] In the present instance the subjectmatter is payments to be made out of profits, when earned, and which would otherwise be allotted to the stock, sold by appellants and the other stockholders to appellee. The charter of the corporation is in perpetuity; the stock will naturally exist as long as the corporation does; and the $25,000 will be paid out of profits, if sufficient, as long as the stock exists; in other words, the term of appellants' right is the term of the duration of the stock, which is absolute and indefinite as to time. True, the corporation may be dissolved, because no longer able to fulfill its charter powers; but so it would be, under like circumstances, had appellants never parted with their stock. A chancellor, upon due application, would not find it difficult to protect appellants as to these payments, though appellee should afterwards sell the stock, or to protect them should the corporation be dissolved, or, indeed, should the owners of the stock endeavor to so conduct the business as to prevent them from getting the $25,000; but it cannot be done in the instant case, which is prosecuted on the theory of a disaffirmance of the contract itself. The decree of the court below is affirmed, and the appeal is dismissed at the cost of appellants. (112 A.) BERGEN AQUEDUCT CO. v. STATE 1917 (P. L. 1917, p. 42). The prior act is as follows: "Any corporation having lines, wires or mains in this state and part (Court of Errors and Appeals of New Jersey. thereof in another state or states, or Feb. 28, 1921.) 1. Taxation 117 State may require payment of specific sum as condition of grant to corporation to do business. The state may require, as the condition of a grant to do business to a corporation, payment of a specific sum based on the gross receipts, or of any sum to be ascertained in any convenient mode the Legislature may prescribe. 2. Taxation 382–Franchise tax on water company with mains in different states determinable on entire gross receipts. Where water company was engaged in sup ply and distribution of water in the state and in an adjoining state, and the whole length of the mains was 51.33 miles, and the length of the mains in the state was 41.527 miles and the proportion of the gross receipts based upon this relative mileage was $49,774.96, while the entire gross receipts returned were $61,168.39, the rate in determining the franchise tax was determinable upon the entire gross receipts, and not upon such proportion thereof as the mileage of the mains in the state bore to the entire mileage, and the 5 per cent. rate applied under P. L. 1900, p. 503, § 4, as amended by P. L. 1918, p. 908, § 2, and P. L. 1917, p. 45, § 4. Parker, Black, White, Heppenheimer, Taylor, and Gardner, JJ., dissenting. Appeal from Supreme Court. The State Board of Taxes and Assessments and others confirmed an assessment upon the Bergen Aqueduct Company. From a judgment of the Supreme Court affirming the assessment, the latter appeals. Affirmed. Collins & Corbin, of Jersey City, for appel lant. Thomas F. McCran, Atty. Gen., and J. W. & E. A. De Yoe, of Paterson, for appellees. MINTURN, J. The State Board of Taxes and Assessments confirmed an assessment upon the Bergen Aqueduct Company, based upon its gross receipts. The Supreme Court affirmed the assessment, and from that judgment this appeal has been taken, upon the ground generally that the assessment as levied cannot be legally supported under the legislation invoked to sustain it. The company is engaged in the supply and distribution of water for public and private use in the village of Ridgewood and the boroughs of Glen Rock and Midland Park, in the county of Bergen, and extends its operation into the adjoining state of New York. The legislation applicable to the situation is contained in section 4 of the act of 1900 (P. L. 1900, p. 502), as amended by Laws of 1918, p. 908, and section 4 of the Laws of * on private property and part thereof on public * * The franchise tax is computed for the business so done in this state upon such proportion of the gross receipts as the length of the lines, wires, or mains in the street or public places bears to the whole length of the lines, wires, or mains. The later enactment referred to is as follows: "The tax levied and assessed during the year one thousand nine hundred and twenty computed upon the gross receipts of the year ending December thirty first, one thousand nine hundred and nineteen, shall be five per centum [per annum], * * * provided, that those persons, copartners, associations or corporations, whose gross receipts shall not exceed the sum of fifty thousand (50,000) dollars, shall be assessed at the rate of two per centum per annum upon such gross receipts." P. L. 1917, p. 45, § 4. The record shows that the whole length of the mains was 51.33 miles; that the length of the mains along any street, highway, road, lane or other public place in this state was 41.527 miles; and that the proportion of gross receipts based upon this relative mileage is $49,774.96, while the entire gross re ceipts returned are $61,168.39. The inquiry presented by the reasons filed on this proceeding is whether the rate to be applied is determinable upon the entire gross receipts, or upon such portion thereof as the entire mileage of the mains in the public streets bears to the entire mileage of the prosecutor's mains. It will be observed that the fourth section of the act of 1900 is designed to indicate what character of corporations are taxable for franchise taxes upon their gross receipts, as well as the method to be resorted to in determining the tax. The legislative requirement is manifest that for the purpose of determining the basis for the assessment the corporation shall make its report, showing "the gross receipts from its whole lines, wires or mains"; and for the business done in this state the franchise tax is imposed "upon such proportion of the gross receipts as the length of the lines, wires or mains in the street or other public places bears to the whole length of the lines, wires or mains." The act of 1917 then provides that the tax levied for the year 1919, "computed upon the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes gross receipts" of the year ending Decem- | productive of much less in taxable results ber 31, 1919, shall be 5 per centum per an- than one more fortunately situated in its num. The ensuing proviso invites the in- power of acquisition and control; the legisquiry of statutory construction with which lative test at all times being the relative abilwe are to deal, wherein it provides that cor-ities of such companies from the viewpoint of porations "whose gross receipts shall not exceed the sum of $50,000 shall be assessed at the rate of two per cent. per annum upon such gross receipts." The gross receipts from the prosecutor's business within the state being $49,774.86, the practical question thus presented is whether the 5 or the 2 per cent. rate shall be applied upon that computation. An inquiry not materially dissimilar to this in principle was submitted to the United States Supreme Court in Louisville & N. R. R. Co. v. Greene, 244 U. S. 542, 37 Sup. Ct. 683, 61 L. Ed. 1291, Ann. Cas. 1917E, 97, involving the construction to be given to a Kentucky statute, providing for the imposition of a franchise tax upon corporations operating within and without the state, based upon "the proportion which the gross receipts of this state bear to the entire gross receipts of the company." conceded general gross income to sustain and meet the tax. Considered with this legislative purpose in mind, the object of the proviso be comes obvious, and susceptible of reasonable and logical construction in its relation to the entire scheme of legislation, and warrants the application of the 5 per cent. rate applied by the state board in this instance. The judgment of the Supreme Court will therefore be affirmed. PARKER, BLACK, WHITE, HEPPENHEIMER, TAYLOR, and GARDNER, JJ., dissenting. CASE v. MAYOR AND BOARD OF ALDER- The opinion of Mr. Justice Pitney declares (Court of Errors and Appeals of New Jersey. it to be "settled that total stock or total assets, situate partly within and partly without the state, but organically related, may be taken into consideration as a means of reaching the true cash value of property within the state, and that the mileage relation may be given its proper weight," citing State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663; Pullman Palace Car Co. v. P. R. R., 141 U. S. 18, 11 Sup. Ct. 876, 35 L. Ed. 613. [1] The fundamental rule is settled beyond controversy that the state may require as the condition of a grant to do business to a corporation payment of a specific sum, based on the gross receipts, or of any sum to be ascertained in any convenient mode the Legislature may prescribe. Home Ins. Co. v. New York, 134 U. S. 594, 10 Sup. Ct. 593, 33 L. Ed. 1025; 26 R. C. L. 161, and cases. [2] The convenient method adopted in this instance was the initial prerequisite to compel corporations to submit a report of gross receipts as a basis for administrative use in the computation of the tax. Obviously nothing was to be gained in behalf of the state by compelling the filing of a report of gross receipts, including business done beyond the jurisdiction, unless it be conceded that the results to be extracted from it were to be made the basis for the exercise of the taxing power locally, and thereafter the imposition of a tax to be imposed upon the basis of gross incomes thus shown at one rate, and at another and less rate upon a minimum sum, based in both instances upon the relative mileage of mains contained in the state; the public policy of the situation inhering in the fact that the corporation whose aggregate annual income should be less than $50,000, should have applied to it a rate Feb. 28, 1921.) 1. Appeal and error 32 Court of Errors and Appeals has jurisdiction over appeal from Supreme Court, hearing cause on appeal under charter of Boonton. Though section 19 of the charter of Boonton only authorizes an appeal to Supreme Court from a judgment dismissing an appeal from an award of damages occasioned by grading, curbing, and paving a sidewalk, an appeal lies from decision of Supreme Court to Court of Errors and Appeals, as an appeal under the new Practice Act is in substance only a writ of error under another name, which such court has authority to hear under Const. art. 6, § 1. 2. Eminent domain 153-Person acquiring land not limited to recovery of damage done subsequently to time of acquisition. In a proceeding under Boonton Charter, § 19, to grade, curb, and pave a sidewalk, the assessment of damages involves the property as a res, regardless of the number of owners or the nature of their assets, and court erred in determining that person acquiring title to land could only recover damages done to her property subsequent to the time she bought it. Appeal from Supreme Court. Action by Minnie R. Case against the Mayor and Board of Aldermen of the Town of Boonton. Judgment for defendant, and plaintiff appeals. Reversed, and remitted for new trial. Samuel Claude Garrison, of Boonton, for appellant. Harold A. Price, of Morristown, for respondent. SWAYZE, J. The town of Boonton undertook to grade, curb, and pave a sidewalk. Pending the construction work, the appellant (112 A.) acquired title to land that was damaged by In such a proceeding it is well settled that the improvement. The board of assessment the assessment of damages involves the propmade an award of damages which was un-erty as a res regardless of the number of satisfactory to her. She appealed to the Su- owners or the nature of their estates. Bright preme Court pursuant to section 19 of the v. Platt, 32 N. J. Eq. 362; Herr v. Board of charter of Boonton (P. L. 1872, p. 814). An Education, 82 N. J. Law, 610, 83 Atl. 173. order was made by a Supreme Court justice Further citation of authority is unnecessary. on consent of counsel that a trial by jury Let the judgment be reversed; and the recbe had to assess the damages anew for lands ord remitted to the Supreme Court for a new and real estate taken or damaged by the trial. improvement. The learned trial judge thought that Mrs. Case could only recover damages done to her property subsequent to BURT et al. v. BROWNSTONE REALTY CO. the time she bought, and charged that the only question for the jury was what damages Mrs. Case suffered by the work that was done (Court of Errors and Appeals of New Jersey. on the property after she purchased it. The appellant had no evidence on that point, and her appeal was dismissed, with costs, and judgment entered to that effect. She appeal. ed to this court. [1, 2] The respondent moves to dismiss the appeal on the ground that the charter of Boonton does not authorize an appeal from the Supreme Court to this court. The answer is that this court has the right under the Constitution to hear cases on writ of error to the Supreme Court and an appeal under the new Practice Act (Laws 1912, p. 377) can be in substance only a writ of error under another name. Article 6, section 1, of the Constitution provides that the judicial power shall be vested in a Court of Errors and Appeals in the last resort in all causes as heretofore. The practice is old and unvaried for this court to take appellate jurisdiction over Supreme Court judgments and our jurisdiction was susbtantially recognized by the language used in Harris v. Vanderveer's Executors, 21 N. J. Eq. 424, at page 428. The motion must be denied. On the meritorious question we are forced to differ from the learned trial judge. He seems to have been led to his conclusion by the fact that in the present case the award is only for damages, and he treated the case as if it were an action of tort. It is not, however, an action for damages brought by the property owner. It is an assessment of damages which the town must ascertain and pay in order to acquire title or avoid an action and no question of damages for a tort is involved. The charter of Boonton deals with damages in the same section and the same language as it deals with the value of the lauds taken. The very order to which the respondent consented directed that the jury assess the damages anew for lands and real estate "taken or damaged." This is the language of condemnation proceedings which the municipality is obliged to take to avoid interfering with the constitutional rights of the property owner. It is not the language of an action of tort brought by the property owner to secure redress for a trespass. (No. 18.) Feb. 28, 1921.) (Syllabus by the Court.) Contracts 187(1)-Provision in lease for compensation held a contract for benefit of brokers so that they could sue thereon. The written instrument considered in this case held to be a contract made for the benefit of the plaintiffs within section 28 of the Practice Act of 1903. 2. Brokers 43(1)—Agreement for compen sation to brokers not within the statute. consideration of services rendered by plaintiffs A written agreement stipulating that in in negotiating a lease and renewals thereof and attending to the collection of rents, they should be paid a percentage on the rents and also a percentage on the sale price in case the landlord should sell to the tenant secured by them, held not to be within section 10 of the statute of frauds, relating to right of brokers to recover commission for selling or exchanging real estate. 3. Brokers 40-Plaintiffs entitled to recover compensation though they were not named in instrument. Where a written agreement provided that, "in consideration of services rendered by as agents of the lessor, etc.," certain compensation should be paid, and it appeared without objection that the plaintiffs had acted throughout in a capacity as agents of such lessor in connection with the subject-matter of the agreement, held, that they were entitled to recover thereon, notwithstanding the omission of their names in the writing. 4. Appeal and error 248-Exception must be taken at time of ruling. An erroneous ruling of the trial court in a common-law action will not be reviewed, even since the enactment of the Practice Act of 1912 (P. L. 1912, p. 377), in the absence of an exception prayed at the time as a notification to the trial court that such ruling will be made the subject of review. Appeal from Supreme Court. Action by John Burt and another, trading as the Lighthouse District Real Estate Agency, against the Brownstone Realty Company. From a judgment for plaintiffs, defendant appeals. Affirmed. Louis E. Stern, of Atlantic City, for appel- | agreed on a sale of the property which was lant. carried out without consulting the plaintiffs, Clarence L Cole, of Atlantic City, for re- who, upon learning of the transaction, claimspondents. ed the 2 per cent. on the purchase price mentioned in the quoted paragraph, and also 4 per cent. on several months' rent which was paid directly to the landlord. This last claim was not included in the verdict and does not appear to have been abandoned; but as the case is argued as though no such claim ex PARKER, J. This was a suit for a commission of 2 per cent. upon the sale price of a piece of real estate in Atlantic City claimed by plaintiffs under a written contract in which they were not named as parties, but which they say was made in its present as-isted, we disregard it at this time. pect for their benefit. The plaintiffs had a verdict and judgment, and the defendant appeals, stating as grounds the refusal of the trial court to nonsuit or direct for the defendant, and the admission in evidence of the contract in question, and also of a letter which was put in evidence. The theory of the appellant is that the suit is for a broker's commission and, consequently, within the tenth section of our statute of frauds and its amendments and supplements. C. S. 2617; P. L. 1911, p. 703; P. L. 1918, p. 1020. With this view we do not agree, as will presently appear. [1] The contract relied on, and which was admitted in evidence over the appellant's objection and exception, is a sealed lease between the appellant Brownstone Realty Company as landlord and one Mary O'Brien as tenant, relating to a furnished cottage in Atlantic City for the term running from March 15, 1919, to March 15, 1920, rents payable monthly in advance, and containing the following paragraph which is the basis of the respondents' claim: "In consideration of services rendered by as agents of the lessor in procuring the within named tenant for the leased premises, and the further consideration hereinafter nam ed, said lessor agrees with said agent that they shall be and remain agents for said lessor and said leased premises mentioned so long as said lessee is a tenant under this lease, or any renewal thereof, or any new lease; said agent is to receive a commission of four per cent. on the amount of rent actually paid by the lessee, and said agent agrees, if required by said lessor, in consideration of said commission, to endeavor to collect the rent as it falls due; and in the event that said lessee should purchase the leased premises during the term of this lease, or any renewal or new lease thereon, then said lessor agrees to pay said agent a commission of two per cent. upon the purchase price." The first point made on this appeal is that the writing in question is not a contract made for the benefit of a third person so as to come within section 28 of the Practice Act of 1903. C. S. 4059. To support this point it is argued that the testimony for the appellant shows that neither the appellant nor Mary O'Brien intended to benefit the plaintiffs, and that the officers of the appellant had really no knowledge of the clause being in the lease. This evidence, however, cannot avail on this appeal, for where the parties deliberately execute a written instrument and no fraud is shown, they are charged with knowledge of its contents. The question of fraud was left to the jury and decided adversely to the appellant. This, as we view it, brings the case within the ruling of Tapscott v. McVey, 83 N. J. Law, 747, 85 Atl. 343. It is plain from the very language of the paragraph quoted above that, if the blank were filled by the name of a person, it would appear on the face of the paper that the stipulation was for the benefit of such person; and, as we shall presently see, there was evidence sufficient to go to the jury to indicate that the plaintiffs were the persons intended. [2, 3] This brings us to the second point, which, as stated in the brief, is that it was error for the trial judge to permit parol testimony to supply the name of the plaintiffs as agents and to admit Exhibit P-1 (the lease) in evidence. So far as the parol testimony is concerned, it is sufficient to say that the admission of this testimony is not set up as a ground of appeal, and it might be well to add that it appeared without objection that the plaintiffs had negotiated the lease for the defendant and had collected the rents thereunder up to within two or three months of the sale. When we take up the question of the propriety of the admission of the lease itself, its relevancy and competency It appeared in evidence without any ob- manifestly depend upon whether the plainjection that the plaintiffs are a firm of real tiffs were the "agents of the lessor in proestate agents and brokers, that they procured curing the tenant"; and, as we have already Mary O'Brien as the tenant for the defend- said, this appeared in evidence without any ants, attended to the execution of a written objection whatever. Apart from this, the arlease and the collection of the rents, and gument under this point is predicated upon then to a renewal of the tenancy to the same the assumption that the agreement under tenant by a further lease, also in writing, consideration is a contract between an owner which is the paper now relied on. It fur- and a broker and within section 10 of the ther appears in the evidence that during the statute of frauds; but, as we have already term the defendant lessor and the lessee | intimated, we do not take this view. It is |