Grant v. Duluth, Missabe & Northern Railway Company
| Decision Date | 27 November 1896 |
| Docket Number | 10,204--(109) |
| Citation | 69 N.W. 23,66 Minn. 349 |
| Parties | JOHN GRANT v. DULUTH, MISSABE & NORTHERN RAILWAY COMPANY |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for St Louis county, Morris, J., denying a motion for a new trial. Affirmed.
Order affirmed.
Clapp & Macartney, for appellant.
Cotton Dibell & Reynolds and Geo. Welwood Murray, for respond ent.
The defendant corporation was organized to construct, equip, and maintain a railroad. By its articles of association, the government of the corporation and the management of its affairs were vested in a board of nine directors. Among the officers provided for was a president, to be elected by the board of directors. The articles also provided for the appointment by the board of an executive committee, to consist of the president and two directors, which should be vested with such powers as the board of directors might from time to time determine, prescribe, or limit. The articles of association are otherwise silent as to the powers of the president. The by-laws, after providing that the board of directors "is authorized to exercise in the government and management of said company an unrestricted authority and to exercise therefor the entire corporate authority of the company," further provide that the president "shall be the executive officer of the company and shall have the supervision of its affairs, with full power to execute all resolutions and orders of the board of directors not specially intrusted to some other officer of the company; * * * he shall sign in the name of the company all certificates of stock, bonds, obligations, contracts, and other instruments made in behalf of the company, unless in special cases it is ordered otherwise by the board of directors."
It is alleged in the complaint, and admitted in the answer, that prior to May 1, 1893, the defendant, having theretofore, by resolution of its board of directors, resolved upon the construction of what is known as its "Superior Branch," entered into a contract with the firm of Wolf & King for the construction of such branch, by the terms of which Wolf & King were to construct it on or before August 1 1893, and the defendant was to pay them for the work upon monthly estimates; that on May 6 and June 3, 1893, Wolf & King and this plaintiff entered into contracts by the terms of which plaintiff was to do the grading on certain parts of this Superior Branch, for which Wolf & King were to pay him in monthly payments, according to the engineer's estimates, the work to be completed by plaintiff by August 1 1893. In short, Wolf & King sublet to plaintiff part of the work included in their contract with defendant, the times of payment and for the completion of the work being fixed to correspond approximately with the terms of the contract between Wolf & King and the defendant.
It appears from the evidence that subsequently, by agreement between Wolf & King and the defendant, the time for the performance of the contract of the former was extended to November 1, 1893, and that, by a like agreement between plaintiff and Wolf & King, the time for the performance of plaintiff's subcontract was also extended to the same date. Although we do not deem the fact material, yet it may be also stated that it appears that the defendant was especially interested in having the construction of this road completed by November 1, 1893, for the reason that its right to certain bonds voted by St. Louis county in aid of the road was dependent on its being completed by that date.
There was evidence tending to prove that in the summer, and while the work of construction under these contracts was in progress, the defendant defaulted in making its monthly payments to Wolf & King, as required by its contract, and that, in consequence thereof, Wolf & King also defaulted in making their monthly payments to plaintiff, as provided in their contract with him, and that, on account of such default, plaintiff had in contemplation stopping work under his contract; that, in this condition of things, Wolf & King and plaintiff went to see Alfred Merritt, the president of the defendant company, and informed him of the situation, and especially of plaintiff's determination to quit work in consequence of the default in the payments. We will here let plaintiff state in his own words the promise then made by Merritt, and upon which he now seeks to hold the defendant liable:
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