James B. Clow & Sons v. A. W. Scott Co., 24437.
| Decision Date | 17 April 1925 |
| Docket Number | No. 24437.,24437. |
| Citation | 162 Minn. 501,203 N.W. 410 |
| Court | Minnesota Supreme Court |
| Parties | JAMES B. CLOW & SONS v. A. W. SCOTT CO. et al. |
Appeal from District Court, Ramsey County; John B. Sanborn, Judge.
Action by James B. Clow & Sons against the A. W. Scott Company and another. The named defendant admitted liability, and after verdict defendant Royal Indemnity Company's motion for judgment notwithstanding or new trial was granted, and plaintiff appeals. Reversed and remanded for entry of judgment on verdict.
Mitchell, Doherty, Rumble, Bunn & Butler, of St. Paul, for appellant.
James C. Melville, of Minneapolis, for respondents.
Action on the bond of a public contractor, defendant A. W. Scott Company, which addmitted its own liability. After verdict against it, the surety, defendant Royal Indemnity Company moved for judgment notwithstanding or a new trial. The motion was granted, and plaintiff appeals.
The plaintiff is a dealer in plumbing supplies with an established claim against defendant Scott Company, arising out of the latter's contract for the plumbing in a public building, the Jordan school in Minneapolis. The sole defense of the indemnity company as surety is that it was not served with notice of plaintiff's claim within 90 days after the completion of the contract; such notice, under section 9705, G. S. 1923, being a condition to recovery by plaintiff.
The Scott Company is insolvent. At the time of its failure it was the plumbing contractor on four public jobs in Minneapolis, the School of Mines at the University and the Lincoln, Bryant, and Jordan schools. The Royal Indemnity Company was surety for all of these contracts except that on the Lincoln school. It will be referred to as the surety.
The Jordan school had been accepted prior to the failure, but the contractor subsequently did additional work on it. The Bryant and School of Mines jobs were unfinished and were completed by the surety under its bond. Plaintiff furnished the plumbing supplies for the three buildings and under the Bryant and School of Mines contracts has been paid, through Mr. Melville, by the surety, for all plumbing materials necessary to complete the work and furnished by it for that purpose. There is no disagreement so far, and whatever his actual authority, Mr. Melville directed the contractors, including plaintiff, to proceed, verified their bills, and made good his assurance that they would be paid. As to the Jordan job, Mr. Melville's authority to act for the surety, particularly to the extent of receiving notice of plaintiff's claim, is denied. Thereby is raised the controlling issue.
A preliminary question challenges the sufficiency of the notice of plaintiff's claim. As to form, it is open to criticism, for it is simply a statement of the account of plaintiff against the contractor so far as it concerns the Jordan high school. Appended is a sworn verification to the effect that the statement is "just, correct, and true and that no part thereof has been paid." We agree with the trial court that this statement "contains the information required by statute" and in substance meets its requirement of "written notice specifying the nature and amount" of plaintiff's claim and giving the date of the last item.
It was considered at the trial that the evidence made it a question for the jury whether Mr. Melville had "apparent" authority to represent the surety to the extent that service of the notice upon him was sufficient. His authority is not denied as to the Bryant and School of Mines contracts. Relative to them, he dealt with the Scott Company and plaintiff with no suggestion, by word or act, that his authority was so limited that any communication intended for the surety, by way of notice or otherwise, would not be sufficient if put in the hands of Mr. Melville. The surety would be in no position seriously to question its binding effect if the notice now in issue concerned either the Bryant or School of Mines contract. The Jordan job was so far in the same situation that the verdict, finding that Mr. Melville had the necessary "apparent" authority, should not be disturbed.
Mr. Melville's letters of instructions, creating and defining his primary authority, were not produced by the surety. Therefore it cannot complain if decision be put upon the manner in which it permitted Mr. Melville to represent it. It is, of course, the rule that "neither the declarations of a man nor his acts can be given in evidence to prove that he is the agent of another." Sencerbox v. McGrade, 6 Minn. 484 (Gil. 334). But what one permits another to do may be evidence of the latter's authority to act for the former. Moreover, in this case Mr. Melville and his stenographer were the only witnesses for the surety in its effort to show an absence of authority in him concerning the Jordan contract. His testimony is such as to make his acts in the premises clearly relevant; for example, as late as May 19, 1923 (long after service upon him of plaintiff's notice), he was corresponding with both plaintiff and the Scott Company relative to the former's bill against the Jordan school. On that date he wrote plaintiff as follows:
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