Central Trust Co. v. City of Des Moines
| Decision Date | 13 March 1928 |
| Docket Number | 38703 |
| Citation | 218 N.W. 580,205 Iowa 742 |
| Parties | CENTRAL TRUST COMPANY, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--O. S. FRANKLIN, Judge.
Action by assignee of a contract for the construction of a retaining wall and sewer, to recover the compensation due thereunder. Counterclaims on various paving contracts between defendant and plaintiff's assignor. Directed verdict and judgment for plaintiff. Defendant appeals.
Affirmed.
Reson S. Jones, Eskil C. Carlson, Chauncey A. Weaver, Don G. Allen and George W. Vest, for appellant.
Miller Kelly, Shuttleworth & McManus and Alex. M. Miller, for appellee.
MORLING J. STEVENS, C. J., and DE GRAFF, ALBERT, and WAGNER, JJ., concur.
The plaintiff's right of recovery and defendant's failure to sustain six of its counterclaims are not disputed. The question is whether there was sufficient evidence to go to the jury on the two remaining counterclaims. These two counterclaims are based on a contract dated July 24, 1916, for paving East Fourteenth Street, and a contract dated April 25, 1917, for paving East Court Avenue. Defendant in argument concedes that the Fourteenth Street paving was completed November 15, 1916, and the Court Avenue paving was completed August 15, 1917.
The contract sued on was made November 29, 1922, and assigned to plaintiff January 2, 1923. Assignment and notice thereof filed with defendant January 11, 1923. The repairs on the pavings for which the defendant counterclaims were done more than six months after the notice of assignment of contract to plaintiff,--namely, July 27 and 28, 1923. Plaintiff's contention is that defendant did not have any counterclaims at the time that plaintiff gave to defendant notice of the assignment, January 11, 1923, and therefore, under Section 9451, Code of 1927, the assignments were not subject to counterclaim. Plaintiff rests this contention on a number of grounds, the principal one argued being that defendant has failed to prove that, before defendant had notice of the assignment, it gave notice to the contractor, James Horrabin & Company, of defects in the pavements, as required by the contract. Defendant's claim is that the notices were given by registered mail, and the question here is whether the evidence of mailing the notice was sufficient to go to the jury.
The paving contracts on which the counterclaims are based require all material and workmanship to be "of such character that the pavement shall endure without need of repairs during a period of five years from and after the completion thereof. That in case any sign of disintegration appears, or any defects or depressions occur within said period * * * except such as are without the fault of the contractor, caused by reason of excavations in the pavement, and except such defects as arise from causes not incident to the ordinary use of street pavements; then the contractor will, within ten days from the time of being notified of such defect, make the same good or will pay to the city of Des Moines the reasonable cost of remedying such defect. It being the intention that the party of the first part [contractor] hereby guarantees that the improvement herein specified shall be and remain (except as to defects that may appear, or repairs, which may be needed by reasons of excavations * * * at the end of five years from the completion thereof in as good condition in all respects as when completed and as required by the contract * * * and shall be and remain a good, substantial, reliable and durable pavement in material and workmanship as a whole and in all its parts except ordinary wear. Provided, it shall be the duty of the party of the first part, or his sureties, to notify the superintendent of the department of streets and public improvements in writing, to inspect said improvement, within thirty days prior to the expiration of said term of five years, and until the said superintendent shall be so notified, the above obligation to maintain said improvement in good condition and repair shall continue * * * "
In accordance with the theory on which the case was submitted below and here, we assume that the notice might be given by mail, and unless and until it was given, the defendant had no counterclaim available under the provisions of Section 9451. Without proving notice, defendant proved no cause of action.
The contractor, Horrabin, was called as a witness for defendant but did not admit receiving the notices. Defendant relies on the testimony of Hoffman, to prove mailing. Hoffman was chief clerk of defendant's engineering department since November, 1922. He had been connected with the office before that time. Blagburn was Hoffman's immediate predecessor as chief clerk, but Blagburn is dead. Hoffman produced at the trial what purported to be copies of notices to the contractor and sureties, with purported post-office registry and return receipts. The post-office registry receipts were in the usual form, giving the number of the article, the postmark, and the return address, "Return to City Street Dept., Des Moines, Iowa." They did not show the name of the addressee, except that the receipt on the return card purported to be signed in the name of James Horrabin & Company, by an agent. There is no evidence of the genuineness of the signatures, or of the authority of the purported agent. There is no evidence that any of the notices were inclosed in an envelope or wrapper, or that they were addressed to the contractor. No evidence of what was his post-office address, except that he testified that he had lived in Des Moines for a number of years, and the postmark of the delivering office is Des Moines, Iowa. There is no evidence that postage was prepaid, and none that the notices were in the packages for which the alleged receipts were given, or were actually delivered in the United States mail, except that, on plaintiff's cross-examination of Hoffman, Hoffman testified that he personally mailed two of the notices. The testimony having been brought out in this manner on cross-examination, we may, for the purpose of discussion, without deciding, assume, as against the cross-examining party, and in the absence of objection...
To continue reading
Request your trial