People ex rel. Nat'l Regulator Co. v. Rosewarne
| Decision Date | 03 June 1929 |
| Docket Number | No. 119.,119. |
| Citation | 225 N.W. 590,247 Mich. 22 |
| Parties | PEOPLE, for Use of NATIONAL REGULATOR CO., v. ROSEWARNE et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Wayne County; Frank L. Covert, Judge.
Suit by the People, for the use and benefit of the National Regulator Company, against William Henry Rosewarne and others, doing business as Rosewarne, McNab & Worswick, and another. Judgment for plaintiff, and defendants bring error. Affirmed.
Argued before the Entire Bench. John G. Dunn and Robert J. Hanley, both of Detroit (Frank W. Atkinson, of Detroit, of counsel), for appellants.
Mark L. Rowley, of Detroit, for appellee.
November 22, 1924, plaintiff commenced suit against defendants under Act No. 187, Public Acts of 1905, sections 14827 to 14830 inclusive, Compiled Laws of 1915. It is alleged and not disputed that the board of education of the city of Detroit made a contract with Rosewarne, McNab & Worswick for the construction of the Noble High School for $349,870; that the board of education required such contractors give a bond for the faithful performance of their contract, and Rosewarne, McNab & Worswick entered into a bond as principals with the Southern Surety Company, defendants, as surety, as required, in the sum of $349,870, conditioned upon it building and completing the Noble High School and paying to any subcontractor, or by any such contractor or subcontractor as the same may become due and payable, all indebtedness which may arise from said contractor to a subcontractor or party performing labor or furnishing materials, or any subcontractor to any person, firm, or corporation on account of any labor performed or material furnished in the erection, repairing, or ornamentation of such building. Rosewarne, McNab & Worswick made a contract with Irvine & Meier, Incorporated, for the installation of the heating, plumbing, and generating systems in said building. Irvine & Meier, Incorporated, contracted with the National Regulator Company to install the National System of Automatic Temperature Regulation in said building for $5,450. The proof shows the National Regulator Company sold and delivered the material and performed the work and installed the National System of Automatic Temperature Regulation in accordance with the plans and specifications for the building. It received in payment upon contract, $1,550, leaving $3,900 due. Upon the filing of the declaration, Rosewarne, McNab & Worswick pleaded the general issue and gave notice that plaintiff's declaration did not state a cause of action; did not comply with the provisions of Act No. 187 of the Public Acts of 1905; that defendants were discharged from liability because no proper notice was served as provided by Act No. 187 of the Public Acts of 1905; that the Noble school was not yet accepted by the board of education; that the work performed was not in accordance with the plans and specifications. The defendant Southern Surety Company likewise filed a plea of the general issue by the same attorneys, giving the same notice of special defenses. The pleas were filed on January 5, 1925. The case was brought on for trial November 23, 1927, two years and ten months after it was at issue. The proof in the case was undisputed that the board of education entered into the contract as alleged with defendants Rosewarne, McNab & Worswick; that the bond mentioned and set forth in the declaration was executed by the Southern Surety Company and the principal contractor; the contract was made with Irvine & Meier; they entered into a contract with the National Regulator Company for the installation of the National System of Automatic Temperature Regulation; the same was installed by the National Regulator Company in accordance with the plans and specifications, in good working order, and the National Regulator Company had paid any and all sums due for labor or material in connection with such installation. It furnished monthly statements of the amount due, and had received $1,500 upon its contract; and the amount due upon the contract at the time of the completion of the installation was $3,900. Defendant's attorney then recalled to the stand Mr. Purcell, plaintiff's witness and the local representative in Detroit of the National Regulator Company, and made proof that the contract made by the National Regulator Company was entered into in the city of Detroit, whereupon he made a motion to amend the plea filed by defendants to set up that the National Regulator Company is a foreign corporation and was not, at the time the contract was entered into or at the time of the suit, authorized to do business in the state of Michigan. This motion was denied, and thereupon defendant's counsel moved for a directed verdict for both defendants for the reason plaintiff was a foreign corporation, not authorized to do business in the state;...
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...had a right to rely in preparing for the trial. For cases in which a similar refusal was approved, see People, for Use of National Regulator Co. v. Rosewarne, 247 Mich. 22, 225 N.W. 590; Morocco v. Lange, 266 Mich. 238, 253 N.W. 281; Stankrauff v. DeVoe, 281 Mich. 660, 275 N.W. 723; Nationa......
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