National Imp. & Const. Co. v. Maiken
Decision Date | 11 October 1897 |
Citation | 72 N.W. 431,103 Iowa 118 |
Parties | THE NATIONAL IMPROVEMENT AND CONSTRUCTION COMPANY, APPELLANT, v. A. D. MAIKEN, et al |
Court | Iowa Supreme Court |
Appeal from Appanoose District Court.--HON. T. M. FEE, Judge.
SUIT in equity to recover the contract price for erecting a canning factory for the defendants at Moravia, Iowa and to establish and foreclose a mechanic's lien against the property upon which the factory was erected. The defendants deny that the factory was constructed according to contract. They also plead a settlement with one Silvers, an agent of the plaintiff. Plaintiff, in reply, denies the settlement, and denies the authority of Silvers to do more than receive and receipt for such money as the defendants might see fit to pay on the contract. From a decree dismissing the plaintiff's petition, it appeals.
Affirmed.
D. P Stubbs and C. T. Howell for appellant.
T. B Perry for appellees.
The individual defendants, who are the promoters and stockholders of a corporation known as the Moravia Canning Factory Company, entered into a written contract with the plaintiff a co-partnership, by which it undertook to build and equip a canning factory in the town of Moravia, in Appanoose county, Iowa. By the terms of this contract, the plaintiff undertook to build and erect the factory according to certain plans and specifications, and to equip it with certain machinery, which was described in the contract, for the consideration of six thousand, nine hundred and fifty dollars, to be paid when the factory was completed and in operation. The contract also contained these provisions: There was also attached to this contract a slip containing the following words: "Said factory shall be furnished with all necessary machinery for canning all kinds of fruits and vegetables at the rate of from ten thousand (10,000) to twenty thousand (20,000) cans per day of ten hours." Whether this was a part of the original contract, or was added thereto without authority after the contract was fully executed, is one of the disputed questions of fact in the case. The suit is upon the contract to recover the agreed price, less a credit of three thousand, nine hundred and thirty-five dollars, indorsed by the plaintiff upon the account, on September 11, 1894. The petition recites the making of the contract and the performance by plaintiff on its part of all its conditions, and asks judgment for the balance due. There is a dispute as to the contents of defendant's answer, but a brief statement of the undisputed recitals of that pleading is sufficient. The defendants say that plaintiff did not furnish the factory with the necessary machinery for canning all kinds of fruit and vegetables at the rate of ten thousand to twenty thousand cans per day of ten hours; allege that it did not have half of this capacity; and further deny that plaintiff ever tested the same, or offered to do so. They further plead that a dispute arose between the parties to the contract as to whether it had been fully complied with by the plaintiff, and that negotiations leading to a settlement of the matters in dispute were had between the defendants and an agent of the plaintiff, which finally resulted in a compromise by which plaintiff agreed to accept four thousand dollars in full of its claims under the contract; that defendants accepted the proposition, paid the four thousand dollars, and received back the contract, together with a conveyance of the property and receipts in full to each of the defendants for their liability under the contract. The plaintiff admits the settlement made by Silvers, but says he had no authority except to receive payments under the contract, which the defendants well knew; that, after receiving the money from the agent, it repudiated and rescinded his action, because of lack of authority and of fraud practiced upon him by the defendants, and offered to return the money received, and demanded the return of the property; that the defendants refused to return the property, and plaintiff thereupon credited the amount (less a small sum which was allowed some of defendants for soliciting stock) to defendants' account, which is the credit it refers to in its petition.
These were, in substance, the issues upon which the case was tried resulting in the order and judgment appealed from. Several questions are argued which we do not regard as controlling, and they will not be referred to except incidentally. For instance, the conflict as to what was in the contract when it was originally agreed to is only important, as we view it, to show that there was an actual dispute between the parties at the time the agreement of settlement is said to have been made. It is not important to determine which was right in this dispute. Sufficient is it to say that such a dispute existed, and that one representing the plaintiff attempted to settle it. That an agent for the plaintiff went to Moravia, met the defendants, and did, in fact, settle this claim, is conceded. But plaintiff insists that he had no authority to do so, and that it rescinded and repudiated the settlement as soon as it learned of it, and, after such repudiation, demanded of defendants the return of the contract, and a re-conveyance of the property. The actual authority conferred upon this agent is evidenced by a power of attorney, the material parts of which are as follows: "Know all men by these presents, that National Improvement and Construction Company, of the city of Chicago, county of Cook, in the state of Illinois, has made, constituted, and appointed, and, by these presents, does make, constitute, and appoint, J. B. Silvers, of the city of Chicago, county of Cook, and state of Illinois, true and lawful attorney for it, and in its name, place, and stead to receive and receipt for any and all sums of money due it at Moravia, Iowa and to give its own receipt therefor. " Of this the defendants had knowledge. Silvers claimed, however, that he had full authority to settle and adjust the claim. Relying upon this claim, and believing in his authority, defendants made the settlement pleaded by them in their answer, and received the documents as therein stated. Silvers returned to Chicago, and reported his settlement to the plaintiff, giving full information as to what he had done. Thereupon plaintiff sent defendants a written notice, in which it recited its claim under the contract, and, further, gave notice that it refused to ratify or justify his (Silvers') acts, and that it had deposited in the Lake Street Manufacturing Block, in the city of Chicago, to the order of A. D. Maiken, of Moravia, Iowa the sum of three thousand, nine hundred and thirty-five dollars; that it demanded a surrender of the factory,...
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