Schenker v. Indemnity Ins. Co. of North America
| Decision Date | 28 October 1940 |
| Docket Number | 195 |
| Citation | 340 Pa. 81,16 A.2d 304 |
| Parties | Schenker, Appellant, v. Indemnity Insurance Company of North America et al |
| Court | Pennsylvania Supreme Court |
Argued October 3, 1940.
Appeal, No. 195, March T., 1940, from judgment of C.P. Erie Co., May T., 1937, No. 36, in case of Martin Schenker v Indemnity Insurance Company of North America et al. Judgment affirmed.
Assumpsit. Before SHULL, P.J., specially presiding.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff and judgment entered for defendant n.o.v Plaintiff appealed.
Error assigned was entry of judgment for defendant n.o.v.
Judgment affirmed.
S. Y. Rossiter, for appellant.
Byron A. Baur, of Marsh, Spaeder, Baur & Marsh, for appellee.
Before SCHAFFER, C.J., DREW, LINN and PATTERSON, JJ.
This is an action of assumpsit instituted by Martin Schenker, appellant, against the Indemnity Insurance Company of North America, appellee, on an alleged oral agreement to become a surety. From judgment n.o.v. entered in favor of the Indemnity Company, Schenker appeals.
Having received notification, on November 17, 1936, that a proposal submitted by him to the county commissioners of Erie County, Pennsylvania, for the construction of the Erie County Tuberculosis Hospital, had been accepted, appellant, on the following day, November 18, 1936, made written application to the appellee Indemnity Company, through its agent at Erie, one George K. Frank, for a performance bond, in the amount of $100,698, required to be filed by him as the successful bidder. After investigation of the financial statements of appellant and his proposed indemnitor, the company, on November 20, 1936, promptly declined to accept the risk unless appellant could raise $20,000, to be deposited in a special account for the payment of bills as the construction work progressed. By reason of appellant's inability to raise this sum, an admittedly reasonable requirement under the circumstances, and his inability to meet the similar minimum financial requirements of other companies applied to, by November 30, 1936, the last day for filing the required bond, the Tuberculosis Hospital contract was awarded to the second lowest bidder.
On February 5, 1937, appellant instituted this action of assumpsit, setting forth an oral agreement allegedly entered into on or about October 16, 1936, with the aforementioned George K. Frank, acting for and on behalf of the appellee company, whereby it was agreed that appellee would become surety on whatever performance bond might be required to be furnished by appellant, in the event that he submitted a bid and the contract was awarded to him. Damages in the sum of $11,820.40, including expenses incurred in preparing and submitting the bid, attorney's fees expended in recovering a certified check accompanying same and lost profits, were claimed. The principal defense was lack of authority on the part of Frank to bind appellee to a contract such as was allegedly entered into by him on its behalf, and the controlling question, as the case has been presented to us, relates to whether limitations contained in the written authority of Frank are binding upon the appellant. The learned court below was of opinion, and appellee contends, that appellant was legally chargeable with notice of such limitations whereas appellant contends that, having dealt with Frank as general agent of the appellee company, he is not affected by the limitations of authority.
Frank's authority, as contained in a recorded power of attorney, a copy of which was attached to appellant's statement of claim, insofar as it is here relevant, authorized him merely "to make, execute, seal and deliver . . . bonds and undertakings on penalties not exceeding One Hundred Thousand ($100,000.00) Dollars each in its business of guaranteeing . . the performance of contracts other than insurance policies, and executing and guaranteeing bonds or other undertakings . . . by law required or permitted." His authority is further limited by written "Limitations and instructions for execution or attestation of bonds executed under Special Power of attorney issued to Mr. George K. Frank, Erie, Pa.", improperly excluded by the court below, requiring that all "Bonds Guaranteeing Performance of Contracts, Bids and Proposal...
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