years have elapsed after such work is done, it could not be tolerated that, because, the power is ultimately held to have been in excess of the lawful authority of the city, such streets must be closed and abandoned, or the sewers and drains destroyed, or the gas and waterworks closed, or the municipal buildings torn down. Such municipal works, having been done under color of lawful authority, when no question as to the validity of the authority was raised, must be regarded as lawfully done.' King v. Phila. Co., 154 Pa. 160, 26 Atl. 308, 21 L. R. A. 141, 35 Am. St. Rep. 817. "Where a corporation, although prohibited by its charter, enters into a contract for the purchase of stock in another corporation, and the contract is executed by the delivery of the stock, it cannot set up as a defense to an action on a promissory note given for the price of the stock, and held by a bona fide purchaser, that the contract was ultra vires.' 'It may be that as between the original parties the defendants could have rescinded the contract and declined to receive the stock. But they executed it; they accepted the stock and gave their note in payment, for which note the plaintiffs paid value in good faith. The defense of ultra vires by a corporation comes with a better grace if made before it has discovered that it has made a bad bargain.' Wright et al. v. Pipe Line Co. et al., 101 Pa. 204, 47 Am. Rep. 701. fisting at the time. This being so, the principle enunciated in numerous cases is applicable, that a municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the corporate powers, and that such ratification need not necessarily be by resolution or ordinance, but may be implied from the ассерtance of the work and formal assertion in judicial proceeding of a claim founded on it. Amongst these cases may be cited: McKnight v. Pittsburg, 91 Pa. 273; Phila. v. Hays, 93 Pa. 72; Brientnall v. Phila., 103 Pa. 156; Silsby Mfg. Co. v. Allentown, 153 Pa. 319 [26 Atl. 646]; Shiloh Street, McCormick's App., 165 Pa. 386 [30 Atl. 986]; Amberson Ave., 179 Pa. 634, 36 Atl. 354; Harrisburg v. Shepler, 7 Pa. Super. Ct. 491; Erie v. Bier, 10 Pa. Super. Ct. 381.' Tarentum Boro. v. Moorhead, 26 Pa. Super. Ct. 273. "If the public corporation has performed the contract on its side, the adversary party cannot retain the benefits and plead ultra vires. The objection that the contract was originally ultra vires has been eliminated by performance.' Page on Contracts, § 1054. "To the same effect are City of Buffalo v. Balcom, 134 N. Y. 532, 32 N. E. 7; Mayor of New York, etc., v. Sonneborn, 113 N. Y. 423, 21 N. E. 121; Hobbs v. City of Yonkers, 102 N. Y. 13, 5 N. E. 778; Mayor of Hoboken v. Harrison, 30 N. J. Law, 73; Tice v. City of New Brunswick, 64 N. J. Law, 399, 45 Atl. 781; City of St. Louis v. Davidson et al., 102 Mo. 149, 14 S. W. 825, 22 Am. St. Rep. 764; Middleton v. City of Elkhart, 120 Ind. 166, 22 N. E. 123; De Boest v. Gambell, 35 Or. 368, 58 Pac. 72. """A corporation may not avail itself of the defense ultra vires when the contract has been in good faith fully performed by the other party, and it has had the full benefit of the performance and of the contract." 27 Am. & Eng. Ency. of Law, 363; Morawetz "Among the authorities upon which the on Corporations, § 689; Wright v. Pipe Line defendant relies are three Pennsylvania casCo., 101 Pa. 204 [47 Am. Rep. 701]; Oil es, namely: Hunter v. Nolf, 71 Pa. 282; Creek & Allegheny River R. R. Co. v. Transportation Co., 83 Pa. 160.' Boyd v. American Carbon Black Co., 182 Pa. 206, 37 Atl. 937. Lancaster County v. Fulton, 128 Pa. 48, 18 "Hunter v. Nolf, 71 Pa. 282, was a case in which, the plaintiff and defendant being applicants for appointment to a public office. plaintiff agreed to withdraw; defendant agreeing in case of his appointment to divide the receipts, they to share the duties jointly. The plaintiff withdrew, the defendant was appointed, and the plaintiff assisted in performing the duties. Held, that the contract was against public policy, and that the plaintiff could not recover for services rendered. Such a contract was void ab initio, and at no time could be enforced. Here the agreement of June 20, 1906, contained nothing which the city could not legally have done, and could not afterwards legally approve. "'No statute has been called to our attention which made it the duty of the borough officers to let the contract to the lowest responsible bidder, but the ordinance in question contains such provision. Therefore, while it cannot be said that they exceeded their statutory powers or violated any statutory provision, yet it cannot be denied that, in entering into the second contract without attempting to get bids, they failed to comply with the mandate of the ordinance. There is also the objection that they were not specially authorized by resolution or ordinance of council to enter into this contract. But the only difference between the first and second contracts that is alleged is as to the price of the materials. Unquestionably the borough had power to make that change, and it is not intimated, either in the affidavit of "Lancaster County v. Fulton, 128 Pa. 48, defense or in appellant's brief, that any 18 Atl. 384, 5 L. R. A. 436, was a case in abuse of discretion was involved in the trans- which Fulton, as county solicitor under a action, or that it was tainted with fraud, or salary fixed by law, contracted with the "Order. services being within his official duties as solicitor. He could not recover, because his able of ratification. "And now, to wit, July 6, 1910, it is orcontract was such as the commissioners had dered that, upon the facts as presented in no power to make, and therefore was incap- the case stated, in which the city of Pittsburg is plaintiff, and Lawrence R. Goshorn "Wilkes-Barre v. Rockafellow, 171 Pa. 177, is defendant, judgment be entered in favor 33 Atl. 269, 30 L. R. A. 393, 50 Am. St. Rep. of the city of Pittsburg, and against Law795, was a suit by the city against the sure- rence R. Goshorn for the sum of $31,649.06, ties on the bond of the city treasurer. The being $30,476.44, with interest thereon from commissioners of the sinking fund of the city loaned to the treasurer, who was in business as a banker, the money in their hands as commissioners, to be used by him in his banking business. He paid interest to himself regularly as city treasurer. Finally his bank closed its doors, and 'his indebtedness to the city as treasurer was ascertained to be $51,743.01. It was made up of four items, viz., the sinking fund of the city, and between $4,000 and $5,000 of interest thereon; the ordinary or current funds of the city, and a considerable sum allowed as interest on the balance due upon this account.' It was held that the sureties were responsible for their principal as a public officer, and not as a banker or borrower, unless they assented to the action which made the loss possible. There being some evidence tending to show that the treasurer, when a candidate for election, had agreed to pay interest at the rate of 3 per cent. on balance in favor of the city, the court said: "This agreement, if made, did not amount to a loan of any particular sum of money by the city council to the treasurer, but was in the nature of a premium demanded from him as the price of the office. It was a premium for which he was not liable, which he could not be compelled to pay if he had taken defense to it, and for which the sureties are not liable. The agreement, if made, was against public policy, and is incapable of enforcement. The promise to pay interest as the price of an election to the office of treasurer has no valid consideration to support it. It is a promise that we cannot recognize as binding on him who made it; a fortiori is it without binding effect on the sureties upon an official bond.' * * * November 17, 1909, to date. It is further ordered that the defendant pay the costs of this proceeding." Argued before BROWN, MESTREZAT, POTTER, ELKIN, MOSCHZISKER, and STEWART, JJ. John P. Hunter and Walter Lyon, for appellant. Charles A. O'Brien, for appellee. STEWART, J. It is a mistake to suppose that the only or chief infirmity to be considered in the contract, which the city of Pittsburg is here seeking to enforce, arises from the fact that the mayor in entering into it exceeded his power. If this were all, the authorities cited by the learned trial judge in his opinion filed in the case would give large support to his conclusion. But it is far from being all. The defense relied on is not only that the contract was an attempt on the part of the mayor to do something for which he had no authority, but that it was a clear usurpation of a power which by law was committed to another department of city government, and which by that department had been duly exercised. The position taken is that the contract is repugnant to the poli cy of the law. The law intrusted exclusively to the councils of the city the power to fix the compensation of the collector, and this they had done by ordinance duly adopted. It is to be presumed that in fixing this compensation they had regard to the work to be performed, and what compensation was necessary to command the services of one qualified to discharge the duties of the office. When the mayor came to exercise his power of appointment, because he thought the compensation fixed by the council excessive, he required of the person he proposed to appoint -making it a condition of his appointment-that he enter into a written contract binding himself to accept for his services a fixed sum, instead of a per centum on the collections as allowed by the ordinance, thereby reducing his compensation very much below that which he otherwise would be entitled to. The mayor was thus substituting his views, in a very practical way, for the deliberate action of the only body that had any right to determine the question of compensation. No matter how meritorious his motives, he was setting at defiance the law governing the case, annulling arbitrarily the action of councils, and taking to himself as mayor a power which had not only not been conferred on his office, but which was expressly ment. The terms he exacted excluded from possible appointment the entire class of men willing to accept the office at the compensation fixed by law, but who would accept for nothing less. His act was an undue interference with the proper exercise of governmental functions, and for this reason, if for no other, it contravened the settled policy of law. But the case presents another condemnatory feature which must not be overlooked. We have a public policy so clearly indicated in our state Constitution that it admits of no dispute. By constitutional provision every public officer, before entering upon the discharge of the duties of his office, is required to make oath that he has not paid, or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to procure his nomination, election, or appointment. The condition of the appellant's appointment to the office of collector was that he would promise "to pay over to the city treasurer the amount of the commissions allowed by the ordinance, less his compensation as above fixed and the expenses of his office," etc. This promise having been made, his appointment followed. The promise was the price of his appointment. If it should be supposed disputable by any whether this contract offends against public policy for the first reason given, what answer can be made to this? The policy here asserted is written in the fundamental law of the state. But reasoning further on general principles is made unnecessary by our own express adjudications. We need only refer to the case of Wilkes-Barre v. Rockafellow, 171 Pa. 177, 33 Atl. 269, 30 L. R. A. 393, 50 Am. St. Rep. 795. The contract there set up was that the treasurer to secure his appointment had promised to pay to the city interest on his balances. "This agreement," says Mr. Justice Williams in the opinion, "if made, did not amount to a loan of any particular sum of money by the city council to the treasurer, but was in the nature of a premium demanded from him as the price of the office. It was a premium for which he was not liable, which he could not be compelled to pay if he had taken defense to it, and for which the sureties are not liable. The agreement if made was against public policy and is incapable of enforcement." This decision is in full accord with the doctrine which prevails generally. If then this contract offends against public policy, as it unquestionably does, the legal results which follow are far more serious than those which attach to a contract simply ultra vires. The latter is illegal only in the sense that it lacks authority for the making; the infirmity is remediable; it may be cured by subsequent ratification, and is even enforceable against a party who has received the benefits under it and afterwards seeks to repudiate it. What results to a contract against public policy is a total and irremediable paralysis, which leaves it absolutely without any force or effect whatever, so that it cannot, under any circumstances, be made the basis of a cause of action. The law when appealed to will have nothing to do with it, but will leave the parties just in the condition in which it finds them. If they have fully executed their unlawful contract, the law will not disturb them in the possession of what each has acquired under it. If one has executed, in whole or in part, the law turns a deaf ear when he pleads for its aid to compel the other to do as much. In the latter case the maxim, "In pari delicto melior est conditio possidentis," applies. The "conditio" referred to in the maxim, as explained by Mr. Pomeroy, in his work on Equity Jurisprudence, is clearly the condition of the parties with respect to their property rights created by or resulting from the contract. If the contract is still executory, the promisor is left undisturbed in the possession of the money or other property which he agreed to pay or transfer; if the contract has been executed, the promisee is left undisturbed in the possession of the money or other property which has been paid or conveyed to him. Now the result must be the same whether the contract here sought to be enforced be regarded as executed or executory. If the former, the law leaves the parties in possession of what has been acquired under it; if executory, it refuses to enforce it. In either case the city is remediless. It is clear, however, that it remains executory. The appellant, though he has had the benefit of the office, has not paid the price he agreed to pay; he has not paid to the city treasurer the difference between the salary he agreed to accept and the compensation he was entitled to under the law. A contract can be said to be executed only when the object of the contract has been performed. Here the only object of the contract remains unfulfilled, the appellant retains the money, and the only purpose of the contract is defeated. For the reasons above stated, the assignments of error are sustained, the judgment is reversed, and judgment is now entered on the case stated for the defendant. MESTREZAT and POTTER, JJ. (dissenting). We would affirm this judgment on the opinion of the learned court below. (230 Pa. 344) MARSHALL v. CLAUSE. (Supreme Court of Pennsylvania. Jan. 3, 1911.) WILLS (§ 602*) -DEVISE-CONSTRUCTION. Testator devised certain land to his son, with a condition that, if he had no direct heirs, "then during his natural life and his present wife or widow to have the use of it during her widowhood, at her death or remarriage said property to go to my heirs at law," indicates an intent that there should be a fee in the son only if he left heirs of his body. [Ed. Note. For other cases, see Wills, Cent. Dig. § 1354; Dec. Dig. § 602.*] Appeal from Court of Common Pleas, Allegheny County. Action by Samuel F. Marshall against W. L. Clause. Judgment for defendant, and plaintiff appeals. Affirmed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. error to enter a judgment for defendant notwithstanding the verdict. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 367-375; Dec. Dig. § 199.*] 2. TRIAL (§ 210*) - CREDIBILITY - INSTRUC TIONS. Where a written statement by plaintiffs' chief witness is introduced contradicting his testimony, the duty of the court is limited to calling the jury's attention to the discrepancy, and cautioning them as to their duty in passing on his credibility. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 490-494, 501; Dec. Dig. § 210.*] 3. TRIAL (§ 140*) - QUESTIONS FOR JURYCREDIBILITY OF WITNESSES. Where part of the testimony of a witness is entitled to go to the jury, while the other part is not so entitled, or when the different parts of his testimony are contradictory, it is the province of the jury to reconcile the con flicting statements. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.*] Appeal from Court of Common Pleas, Alle William J. Barton, for appellant. R. H. gheny County. Hawkins, for appellee. PER CURIAM. The plain intention of James Marshall in devising an interest in a farm to his son, Samuel F. Marshall, the appellant, by a will dated August 5, 1890, is in no danger of being defeated by any rule of law. The devise of the land to the appellant, which he undertook to convey in fee to the appellee, has annexed to it the following condition: "But if he should have no direct heirs, then during his natural life and his present wife or widow to have the use of it during her widowhood, at her death or remarriage said property to go to my heirs at law." The clear contemplation of the testator was a definite failure of issue, and his intention is plain that there should be a fee in the son only in case he left heirs of his body. In default of such heirs, the farm, upon the death of the son, is to pass for life to his widow, and upon her death to the heirs of the testator generally. The learned court below correctly held that Stoner v. Wunderlich, 198 Pa. 158, 47 Atl. 945, was controlling authority that the appellant has but a life estate in the land, and the judgment is affirmed. (230 Pa. 295) DANKO et al. v. PITTSBURG RYS. CO. (Supreme Court of Pennsylvania. Jan. 3, 1911.) 1. JUDGMENT (§ 199*) - JUDGMENT NOTWITHSTANDING VERDICT-QUESTION FOR JURY. In an action to recover for personal injuries, where the testimony of the only witness called to describe the accident makes out a clear case for the jury, but on cross-examina Action by Chester Danko, by his father and next friend, and John Danko, against the Pittsburg Railways Company. From a judgment for defendant notwithstanding the verdict, plaintiffs appeal. Reversed. Argued before BROWN, MESTREZAT, POTTER, ELKIN, STEWART, and MOSCHZISKER, JJ. Rody P. Marshall and A. H. Mercer, for appellants. William A. Challener, David A. Reed, and Clarence Burleigh, for appellee. BROWN, J. At the time Chester Danko was injured he was but four years of age, and the question of his contributory negligence is therefore not in the case. But a single witness-J. C. McLaughlin-was called by the plaintiffs to describe the accident, and from his testimony in chief the negligence of the defendant company was clearly for the jury. He testified that, when one of its summer cars had reached the end of a line in the borough of Duquesne, the injured plaintiff and another boy, somewhat older, got upon it; that the older boy turned the seats, and just before the car started the younger one attempted to get off; that while he was hanging on the running board, and trying to get off, the motorman rang the gong and the conductor gave the signal to start; that when the car started it gave a lunge and the little fellow fell off, the rear wheel of the car passing over and crushing one of his feet; that, when the conductor gave the signal to the motorman to start. he was on the rear platform making out a report; that he did not glance at the running board, where he would have seen the boy about six feet from him if he had look tion he is confronted with a statement signed ed. On his cross-examination McLaughlin by him two days after the accident, inconsistent was confronted with a statement which he with his testimony in chief, which statement he testified he signed without reading, the cred- had signed two days after the accident, at ibility of the witness is for the jury, and it is the instance of an employé of the company, crepancy between the written statement which had been procured from the witness and his testimony in chief and to properly cautioning them as to their duty in passing upon his credibility, which was for them alone. and in this he stated that the boy had hopes, his credibility was for them, and not ped on two or three cars before he was hurt; for the court. The duty of the latter was that, as he grabbed the running board of limited to calling their attention to the disthe car, his feet went under the wheels; and that it was his own fault. The question of the defendant's negligence was submitted to the jury on McLaughlin's testimony and a verdict returned in favor of the plaintiffs, but judgments on it were denied them and judgment was entered for the defendant non obstante veredicto, because the court below was of opinion that the burden upon the plaintiffs to establish the defendant's negligence had not been discharged, in view of the discrepant testimony of the only witness called to prove it. [1] While it would have been no abuse of judicial discretion on the part of the court below, if it had been so asked, to have set the verdict aside, if regarded as perverse in view of McLaughlin's testimony, and to have compelled the plaintiffs to satisfy a second jury that his testimony as a witness for them was true, it by no means follows that the court could have taken from the jury in the first instance the determination of the question of fact depending upon his credibility. Dinan v. Supreme Council of the Catholic Mutual Benefit Ass'n, 210 Pa. 456, 60 Atl. 10, and a judgment non obstante veredicto may be entered only in cases where binding directions to the jury would have been proper at the trial. Dalmas v. Kemble, 215 Pa. 410, 64 Atl. 559; Bond v. Penna. R. R. Co., 218 Pa. 34, 66 Atl. 983; Shannon v. McHenry, 219 Pa. 267, 68 Atl. 734; Hardoncourt v. North Penn Iron Co., 225 Pa. 379, 74 Atl. 243. [2] When on part of the testimony of a witness a plaintiff is plainly entitled to go to a jury, while on the other part of it he plainly is not, or when the different parts of the testimony of a witness are apparently inconsistent, leaving it uncertain just what his recollection of the facts respecting which he testifies is, it is the province of the jury to reconcile the conflicting statements, whether of the same What appears in the written statement to which the employé of the company procured McLaughlin's signature is radically inconsistent with his testimony in chief on the trial, but it is first to be noted that the statement was written by the employé, and, when the witness signed it, he did not read it, nor was it read to him. In this he is uncontradicted, for the employé was not called as a witness. It is true that, when McLaughlin was pressed on cross-examination to say whether what appeared in the statement was a truthful account of the accident, he answered that it was, but this answer must be received in connection with the answers which immediately preceded it in determining whether in view of it the case should not have gone to the jury. When the witness was first asked whether the statement to which he had appended his signature was correct, his answer was: "If my signature is there, it must be correct." This, however, must be taken in connection with his uncontradicted statement that he had not read the paper and it had not been | or different witnesses, or to draw the line between them and say which shall prevail. Kohler v. Penn. R. R. Co., 135 Pa. 346, 19 Atl. 1049; Ely v. Railway Co., 158 Pa. 233, 27 Atl. 970. And, [3] if a witness at a former trial, or elsewhere, has made statements contradictory of his testimony at a second trial, such statements affect his credibility, but do not authorize an instruction to the jury not to believe him. Platz v. McKean Township et al., 178 Pa. 601, 36 Atl. 136. Under the rule recognized and applied in the foregoing and other cases, this case was for the jury. read to him, and, when his answers are so The judgment of the court below is reversed and the record remitted, with direction that judgments be entered for the plain |