Scherr Const. Co. v. Greater Huron Development Corp., 82-1370
| Decision Date | 25 February 1983 |
| Docket Number | No. 82-1370,82-1370 |
| Citation | 700 F.2d 463 |
| Parties | SCHERR CONSTRUCTION COMPANY, a corporation, Appellee, v. GREATER HURON DEVELOPMENT CORPORATION, a corporation, Appellant, Meese-Peterson & Foss, Inc., a corporation. |
| Court | U.S. Court of Appeals — Eighth Circuit |
A. Thomas Pokela, Cadwell, Brende & Sanford, Sioux Falls, S.D., John T. Gassmann Valley City, N.D., for appellee Scherr Const. Co.
Ron J. Volesky, Churchill, Manolis & Freeman, Huron, S.D., for appellant Greater Huron Development Corp.
John L. Morgan, Morgan, Fuller, Theeler & Cogley, Mitchell, S.D., for appellee Meese-Peterson & Foss, Inc.
Before ROSS and FAGG, Circuit Judges, and BEAM, District Judge. *
Greater Huron Development Corporation appeals from the order of the trial court 1 granting the appellee's motion for summary judgment in an action for breach of contract. The district court's jurisdiction was based upon diversity of citizenship pursuant to 28 U.S.C. Sec. 1332 (1976). The appellant is incorporated under the laws of South Dakota. The appellee, Scherr Construction Company, is incorporated in North Dakota. The amount in controversy in this action exceeds $10,000.00. Appellate jurisdiction is based upon 28 U.S.C. Sec. 1291.
The following facts are not disputed: On July 10, 1979, the appellant, appellee, and a third party defendant, Meese-Peterson & Foss, consulting architects, were represented at a meeting in which an oral contract was formed. 2 The contract required the appellee to erect and allow the use of a temporary steel building. On July 12, 1982, Meese-Peterson & Foss sent a letter to the appellee reciting the time for performance and some of the specifications for the building. The appellee, in response to a second letter from Meese-Peterson & Foss, sent a reply letter dated July 24, 1979. This letter included more detailed specifications for the building and set as an initial base price for performance the sum of $7,600.00. Additional charges were to be added for other specified expenses. Copies of this letter were sent to Meese-Peterson & Foss and also to the president of the appellant corporation. The appellee requested the appellant's officers to sign and return the letter. There is no evidence in the record that the letters were ever signed or returned.
The appellee constructed the temporary building by August 6, 1979, and it was occupied by a non-party until January 1, 1980. Thereafter the appellee dismantled the building and returned it to North Dakota. The appellant does not argue, on appeal, that the appellee failed to fully perform the contract. The district court found that the appellant was in breach when it refused to pay $12,279.99 on January 15, 1980. The court ordered damages in that amount plus an award of interest at the legal rate.
The appellant's only argument on appeal is that it was not bound by the agreement previously discussed. The appellant describes its role in these affairs as that of interested spectator and denies that it was an actual party to the agreement. The primary argument is that Meese-Peterson & Foss was never acting as the appellant's agent, but was instead acting independently, or for a third party.
The appellee's showing in support of the motion for summary judgment included (in addition to the letters referred to above) an affidavit from Lynford Meese of Meese-Peterson & Foss. This affidavit contains the statement that the parties to this appeal did reach an agreement at the July 10, 1979 meeting and further that the letters of Meese-Peterson & Foss were intended to reduce this agreement to writing. In addition to the letters and affidavit, a series of memos prepared by Meese-Peterson & Foss and sent to the appellant were introduced. These memos advised of the project's progress and of its potential cost. Finally the appellee introduced corporate minutes from the...
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