Consolidated Const. Co. v. Begunck
| Decision Date | 11 May 1943 |
| Docket Number | 46182. |
| Citation | 9 N.W.2d 390,233 Iowa 463 |
| Parties | CONSOLIDATED CONST. CO. v. BEGUNCK. |
| Court | Iowa Supreme Court |
W. J. Wilkinson and Hatter & Hatter, all of Marengo, for appellant.
F C. Harrison, of Davenport, for appellee.
Consolidated Construction Company is the trade-name of an unincorporated business at Moline, Illinois, owned and operated by William F. Locander. The general nature of the business is the repair and reconstruction of residence properties. During the year 1940 considerable of this business was done in Iowa County Iowa, through two authorized agents of the plaintiff, William Burton and Carl H. Voss. These men procured the contracts. Most of the contracts were obtained by Voss, and he gave general superintendence to most of the work, and attended to keeping on hand materials furnished by the plaintiff or by local dealers. He also hired such local labor as was needed in addition to the men sent out from Moline. E. J. Navrot, a brother-in-law of Locander, was the general manager of the business, and was occasionally in Iowa County to check upon the work and to make collections. Locander, so far as disclosed, did not come into Iowa County, and gave no attention to the business on location.
The defendant, a retired farmer, seventy-two years old, lived on his farm with his daughter and son-in-law, who operated it. On August 13, 1940, William Burton, agent of plaintiff, and Begunck executed a written contract for the improvement of the latter's farm residence. This contract provided that the plaintiff, as contractor, agreed to furnish all materials and labor for the improvement on the premises on "R. R. 1, Marengo," in accordance with specifications set out in the contract: The contract also contained provisions that the property should stand as security for the contract and that the agreement should become binding only upon written acceptance by the contractor or his authorized officer, or upon commencing performance of the work. It was signed by Begunck, and by "Consolidated Const. Co. 2307 5th Ave., Moline, Illinois, (Contractor) By Wm. Burton (Authorized Agent)." All of this signature had been previously stamped on the contract, except the name "Wm. Burton," which was written by the latter above the blank line, when the contract was executed.
Burton took the original contract with him and left the carbon duplicate with Begunck. The latter's son-in-law saw this contract executed. The next day Voss called on Begunck, and told him he was an agent of the plaintiff, and showed him a number of these improvement contracts signed by people in the community. With respect to the printed matter therein these contracts were identical with the one signed by Begunck. Upon the order of the trial court some twenty of these executed contracts were produced by the plaintiff. All of them were on the same printed form as that of Begunck's with the plaintiff's name stamped thereon, and the agent's name written. Voss hauled out much of the materials in his car, and was on the job supervising the work about every day, but did no manual labor. The two laborers from Moline completed their work in about a week or ten days, and a carpenter from Amana finished the job in two or three days more. On August 20, 1940, when the Moline workmen were through, Voss told Begunck that it would be necessary for him to sign a release showing the completion of the work and a note so that the Moline men could get their money. The defendant signed both the release or completion certificate and the note at this time. The promissory note was on a blank of the Iowa County Saving's Bank of Marengo, and payable there. It was for $425, payable October 15, 1940 to Carl H. Voss. This note bears the paid stamp of the said bank showing payment on October 25, 1940. The note bears the indorsement, "without recourse," of Carl H. Voss. The defendant, speaking of the note said:
Navrot called on the defendant with Voss about the time the work was completed and told the defendant he was the manager. Sometime later he again saw the defendant and there was some talk about payment of the $425. Defendant testified that Navrot asked him whether he had paid any money or notes to Voss, and asked him if he was ready to pay the $425. Navrot testified that he talked with him about the payment of the money, and Begunck said that he understood that he had $425 to pay the Consolidated Construction Company, and that he had the money ready when it was due. Navrot said he would call and collect it at that time, and that defendant told him to do so. On October 12th or 13th, Navrot was in the neighborhood and told defendant if he had the money he could give him the proper receipts. Defendant then told him that he had just received a notice that day from the bank that his note was due there. Navrot told him he had no knowledge that they had any notes at the bank. The next day he inquired at the bank and was shown the note of Begunck payable to Voss which the bank had bought. He told defendant of this and the latter said he would probably have to pay the note twice. There is no denial of these matters by the defendant.
On October 16, 1941, plaintiff filed his petition in equity to foreclose a mechanic's lien, alleging the contract of August 13, 1940 for re-siding and improving the dwelling on the defendant's property described as the Northeast Quarter of the Northwest Quarter of Section 31, Township 80, Range 11, in Iowa County. Attached to the petition was a copy of the contract of August 13, 1940, except that it bore the signature of Carl H. Voss instead of Wm. Burton, who had in fact procured and signed the contract. The petition alleged the filing in the clerk of court's office on October 21, 1940 of a statement for mechanic's lien against the real estate above described, and a copy thereof attached to the petition, states that it was executed and sworn to by Locander on October 15, 1940. Judgment was prayed for $425 with interest, and foreclosure of the lien.
Defendant filed answer admitting the ownership of the property, denying the execution of the agreement set out in the exhibit to the petition, and denying any indebtedness to the plaintiff. Later defendant filed a cross-petition, and an amendment to the answer. In division two of the amendment he alleged: the business done in Iowa County, solely by the agents Burton and Voss; how they were furnished with blank contracts, such as defendant had signed, by the plaintiff; their authorization by plaintiff to solicit the execution of these contracts for improving buildings in the community, and to purchase some materials and labor locally; that the agents in the conduct of the business furnished labor and sold materials in some instances for cash, and other instances on deferred payments, or by executing promissory notes payable to the plaintiff or to Voss; that by reason of these alleged matters the plaintiff established a custom and usage for the conduct of plaintiff's business; that relying on the matters pleaded, in August 1940, the defendant purchased from plaintiff or Voss certain materials for $425, and on August 20, 1940, paid the plaintiff, through Voss, the full amount owing the defendant on account of said work. In division three defendant alleged that because of the said conduct of plaintiff he purchased the labor and material and paid for the same, and the plaintiff is estopped from asserting the claims in his petition. The cross-petition denies the execution of the contract, realleges, by reference, the allegations of his answer and amendment thereto, and prays the cancellation of the contract.
In reply to the amended answer, and in answer to the cross-petition, the plaintiff alleged: the execution of the contracts, the furnishing of materials and labor to perform the contracts, the limited capacity of its soliciting agents as salesmen with incidental duties in connection therewith. He denied other allegations generally, and in particular, that the agents furnished or sold, or had any authority to furnish or sell materials or labor, or that they had any authority to bind plaintiff by any contracts without approval by him, or his authorized officers, or that they had any authority to take promissory notes payable to the plaintiff or to such agents, and particularly to Carl H. Voss, and denied that Voss sold or furnished any of the materials necessary to make the improvements specified in the contract.
In an amendment to the answer to conform to the proof the defendant alleged that the contract was materially and fraudulently altered, and thereby rendered void by erasing the signature, "Wm. Burton," and inserting instead the name "Carl H. Voss" and by substituting "October 15th" for "Oct. 15."
The trial was not had at one sitting. Plaintiff used the defendant as a witness to identify his signature to the contract, of August 13, 1940, which contract, being the original, bearing the signature of Voss instead of Burton, was received in evidence subject to objection. Plaintiff then put Navrot on the witness stand and showed a conversation with defendant about the payment for the work. After the substance of this conversation was stricken, the plaintiff rested his case. He made no attempt to establish the allegations of the petition respecting the mechanic's lien,...
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