Bankers' Construction Company v. American National Bank
| Decision Date | 22 January 1924 |
| Docket Number | 1084 |
| Parties | BANKERS' CONSTRUCTION COMPANY v. AMERICAN NATIONAL BANK |
| Court | Wyoming Supreme Court |
APPEAL from District Court, Laramie County; WILLIAM C. MENTZER Judge.
Action by the Bankers' Construction Company against the American National Bank of Cheyenne to recover an alleged balance due for the installation of banking equipment and furnishings. There was a judgment for defendant and plaintiff appeals.
Affirmed.
Kinkead Ellery and Henderson for Appellant.
This action is a quantum valebat to recover the value of equipment and furniture; the defense claimed a written contract made by the plaintiff and promoters of the Bank before its organization, which was adopted by the defendant; appellant contends that respondent failed to meet the burden of showing a contract made on its behalf with the understanding that it would adopt and be bound by it, or that it did expressly or impliedly adopt the contract so as to become a party thereto and entitled to enforce the same in defense. There is no evidence of an express adoption by respondent; only that respondent made payments on the contract; nor is there evidence of an implied adoption of the contract by respondent; acceptance of benefits is not an implied adoption. Fletcher Cyc Corp. Vol. 1, Sec. 156, 14 C. J. 262-265; delivery to and use by respondent of the furniture does not establish implied adoption. 14 C. J. 259; Tuttle v. Company, (Me.) 64 At. 496; Teeple v. Company, (Ia.) 114 N.W. 906; Rideout v. Ass'n., (Cal.) 112 P. 192; Moriariety v. Meyer, (N. M.) 157 P. 652; Plains Iron Works Co., vs. Haggett, 188 P. 735; Posell v. Smith, (Colo.) 88 P. 1064. The judgment of the trial court that respondent became a party to the contract is not sustained by the evidence, and it is therefore liable to appellant in quantum valebat. Tuttle v. Company, supra.
Lacey & Lacey & W. E. Mullen for Respondent.
The execution of the contract is admitted and also payments made by defendant thereon, aggregating $ 34,891.75; there was no evidence of an abandonment of the contract; there was evidence that plaintiff claimed a right of recovery upon the contract; changes made in plan were suggested by plaintiff; it was conceded at the trial that the bank assumed the contract; plaintiff admitted the extra items; authorities cited by appellant are not applicable to the facts here; they involve cases where the corporation resisted liability on the contract, while here the corporation admits liability on the contract; adoption of a contract by a corporation, made by its promoters need not be express. 7 R. C. L. 82; acceptance of benefits estops the corporation to deny validity of the contract. A judgment upon conflicting evidence will not be disturbed, Hood v. Smiley, 5 Wyo. 70; the contract having been executed and followed, recovery thereon could in no event exceed the amount agreed upon therein, plus extras agreed upon, even though the action be brought as one on account, as the contract in such case becomes the quantum meriut. Hilliard v. Douglas Co., 20 Wyo. 217; Metcalf Co. v. Gilbert, 19 Wyo. 331.
This action is in quantum valebat, brought by the Bankers Construction Company, plaintiff and appellant, against the American National Bank, defendant and respondent, to recover the sum of $ 7312.93 alleged as a balance due plaintiff from defendant by reason of furnishing, delivery and installment by plaintiff for defendant of certain banking room equipment furniture and fixtures in the Hynds building in the city of Cheyenne. The total value of such equipment, furniture and fixtures is alleged to be of the value of $ 42,204.68 of which defendant paid the sum of $ 34,891.75, leaving due the balance above mentioned. The defendant answered and filed a cross-petition, alleging that it was organized under the banking laws of the United States on June 21, 1919; that prior thereto, on February 22, 1919, John Hay and J. C. Kinney entered into a contract with plaintiff for the work and material above mentioned; that said contract was made for the benefit of said bank, to be thereafter organized; that the plaintiff therein agreed to do said work and furnish said material at the agreed price of $ 29,843.00; that some changes were thereafter made by mutual agreement for an additional agreed sum of $ 4,535.24, making the total agreed cost the sum of $ 34,378.24; that defendant paid the sum of $ 34,892.00 or $ 513.51 more than the agreed cost, for which excess payment defendant asks judgment against plaintiff. Other damages are asked against plaintiff for failure to furnish and install certain material under the contract, and for failure to complete the work in the time agreed. Plaintiff filed a reply denying the affirmative allegations in the answer and cross-petition, and claiming that said contract was mutually abandoned. The case was tried to the court without the intervention of a jury; the court found generally in favor of defendant, and entered judgment in its favor and against plaintiff for the sum of $ 706.23, from which judgment plaintiff appeals. The only two points relied on for reversal of the judgment herein are stated in the brief of counsel for appellant to be: (1) that the record does not establish that the contract made on January 22, 1919 between appellant on the one hand and Hay and Kinney on the other, was made on behalf of the respondent or that it was intended by the parties thereto that the respondent, when organized,...
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Williams v. McNally
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