93 N. J. L. Public Service Ry. Co. v. General Omnibus Co.

That such repeal was not inadvertently brought about, in the present case, but was expressly intended, is evidenced by the fact that there was added to the amended article 10 this paragraph: "Before any ordinance shall take effect such ordinance or its title shall be published at least once in a newspaper circulating in such municipality. It shall not be necessary to publish an ordinance otherwise than required by this act."

Keeping in view that the legislature was dealing with al. ordinances, and that it declared that it shall not be necessary to publish an ordinance otherwise than as required by the later act, it seems to us that there could not have been a more expressive declaration of the legislative intent that all ordinances shall be governed by the act of 1917, as amended by the act of 1918, than expressed.

Moreover, a fair reading of the Home Rule act clearly indicates that the legislative powers conferred by the act on municipalities are to be exercised by them, so far as the regulation of their internal affairs are concerned, solely in accordance with the provisions of the act.

Its clear object was to erect a machinery of administration of municipal affairs which shall operate uniformly in all municipalities.

The fact that the Home Rule act makes no provision whatever as to what vote shall be sufficient for the passage of an ordinance, or the transaction of any other lawful business, is a cogent circumstance tending to establish that the legislature intended that the common law rule, that a majority vote of the members of the municipal body constituting a quorum shall be sufficient for the purposes mentioned.

This legal rule is well expressed in Barnert v. Paterson, 48 N. J. L. 395, by Mr. Justice Knapp (at p. 400), where he says: "When the charter of a municipal corporation or a general law of this state does not provide to the contrary, a majority of the board of aldermen constitute a quorum, and the vote of a majority of those present, there being a quorum, is all that is required for the adoption or passage of a motion or the doing of any other act the board has power to do."

Public Service Ry. Co. v. General Omnibus Co. 93 N. J. L.

Other cases on the subject and to the same effect are: McDermott v. Miller, 45 Id. 251; Cadmus v. Farr, 47 Id. 208, in which the English and American cases on the topic are collated by Mr. Justice Magie. Hutchinson v. Belmar, 61 Id. 443; Whittingham v. Milburn Township (Court of Errors and Appeals), 90 Id. 344, 347.

For the prosecutor it is argued that "there is no such inconsistency between the two acts as to make an implied repealer."

We have already endeavored to point out that the action of the legislature in omitting the non-repealer clause in the amendment of 1918 was tantamount to an express repeal of the provision relating to ordinances for franchises contained. in article 10 of the act of 1917.

The legislative mind might have been influenced by the fact that there was no substantial reason why an ordinance relating to a franchise should require four votes in cities having five commissioners and a unanimous vote in cities having only three commissioners, while all other ordinances, no matter how important or grave to the public welfare, could be lawfully passed by a majority vote. Further, the legislature might have had in mind that to make an especial exception in the regard pointed out for the passage of ordinances relating to street franchises would have a tendency to foster monopolies, by circumscribing the granting of franchises for the use of the public streets to prospective competing corporations or persons within almost prohibitive bounds. If the original purpose of the exception was to shackle the will of the majority, in granting franchises, and in order to make it more onerous for applicants for street franchises for a legitimate purpose to obtain them, then such exception is wholly irreconcilable with the spirit of the Home Rule act.

We are inclined to the view that where the legislature, by a general statute, as here, covered the entire subject of municipal powers and procedure thereunder, as granted to the municipalities of this state, failed to make any provision for the number of votes which shall be necessary for the passage

of an ordinance or the transaction of any other lawful business, that the law-making power intended to adopt the common law rule, as above stated, and, hence, any exception, existing in a former statute, to the common law rule, and which is inconsistent with such rule is impliedly repealed, unless the exception is in express terms retained by such general statute. The ordinance will be affirmed, with costs.

EMMET QUEEN ET AL., PLAINTIFFS, v. EDWARD H. JENNINGS, DEFENDANT.

Argued June 4, 1919-Decided November 5, 1919.

1. The duty which an agent undertakes, the obligation he assumes as a condition of his right to demand commissions is to bring the buyer and seller to an agreement. The agent, to earn commissions on the sale of property, must be the efficient or procuring cause of the sale.

2. When the question appears by the evidence to be disputed, the question of the person with whom a contract was made should be left to the jury. When there is real doubt upon the point, such doubt must be solved by the jury as a fact.

3. In this case, the evidence examined and held, whether the plaintiff was discharged in good faith, or whether he was the efficient or procuring cause of the sale, were questions of fact properly submitted by the trial court to be determined by the jury.

4. The verdict of a jury may rest upon inferences, such as jurors are permitted to draw. It will not be set aside, although in the opinion of the court the jury might upon the evidence have found otherwise.

5. To justify the setting aside of a verdict as against the weight of evidence, it must be so clear as to give rise to an inference, that the verdict was the result of mistake, passion or prejudice. 6. The affidavit or testimony of a juror will not be received for the purpose of impugning or destroying a verdict in which he has joined, or proving the ground of the verdict. This on the grounds of public policy. But misconduct on the part of the jury or the court officers in charge of the jury may be shown by proper testimony.

7. A verdict cannot be supported upon a theory of the law contrary to that upon which the case was submitted to the jury. VOL. XCIII.

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8. Under the Practice act (Pamph. L. 1912, p. 397, ¶¶ 72, 73) a new trial shall only be granted of the question or questions with respect to which the verdict is found to be wrong, if separable, or where the new trial is ordered because the damages are excessive or inadequate, and for no other reason, the verdict shall be set aside only in respect of the damages, and shall stand good in all other respects.

On rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices MINTURN and BLACK.

For the plaintiffs, King & Vogt, George A. Bourgeois, Brainard Avery, George W. Alger (of the New York bar) and Jay E. Whiting on the brief.

For the defendant, Lindabury, Depue & Faulks, Richard V. Lindabury, Clarence L. Cole and William M. Robinson (of the Pittsburgh bar) on the brief.

The opinion of the court was delivered by

BLACK, J. The trial of this case, at the Atlantic Circuit, resulted in a verdict for the plaintiff for $450,452. The defendant obtained the rule to show cause, reserving all the exceptions taken throughout the trial. The reasons assigned for a new trial by the defendant are that the verdict is against the clear weight of the evidence, that it is contrary to and inconsistent with the charge of the court, the issues raised by the pleadings and the evidence produced in support of the issues. Also that it is the result of prejudice or passion.

The purpose of the suit was to recover commissions alleged to have been agreed to be paid to the plaintiff by the defendant for procuring the sale of nine hundred and forty-one thousand shares of the common stock of the Pure Oil Com-' pany, a New Jersey corporation. The contract for such commissions is alleged to have been made on or about the 20th day of March, 1916, at the city of Pittsburgh, in the State of Pennsylvania. The contract was not in writing. The compensation for such service was to be the sum of one dollar

($1) for each share of such stock sold, at a price satisfactory to the defendant. The stock, it is alleged, was sold through the plaintiff to William A. Read & Company and Ohio Cities Gas Company for $23,054,500, a price satisfactory to the defendant, which was at the rate of $24.50 per share. The defendant denies that the plaintiff sold to or secured William A. Read & Company and Ohio Cities Gas Company, or either of them, to purchase such shares, but admits that in May or June, 1917, a large number of such shares were sold to the two above-named companies. The defendant, in his testimony at page 390 of the record, admits that he made a contract with the plaintiff, based upon twenty-five cents a share, and no more, and that contract was always in existence until April 19th, 1917, when the deal was broken off. The two problems, therefore, for solution on the question of liability are: Was the contract terminated between the parties on April 19th, 1917, and, if not, was the plaintiff the efficient or procuring cause of the sale of the stock? These questions were clearly and pointedly submitted to the jury by the trial judge. Does the testimony, therefore, justify the conclusion reached by the jury in finding both of these questions in favor of the plaintiff? Or is the weight of the evidence so clearly against the verdict that it justified this court in setting it aside? Our examination of the record leads us to the conclusion that both of these questions must be answered in favor of the plaintiff. On the first proposition the defendant insists that the contract was terminated on the 19th of April, 1917, immediately after the negotiations with William A. Read & Company were broken off. "I told him that I was completely through with it and washed my hands of the whole business."

The plaintiff denies this and testifies that Jennings, the defendant, wanted him to revive it, i. e., the negotiations, which he did, "and for me to keep my ear close to the ground and see what was going on and keep it going," which I did. He saw Mr. Martin, of William A. Read & Company, the next day; "he told me several times later that things were moving along." On cross-examination, after being shown Jennings'