Schroeder v. Cedar Rapids Lodge No. 304, Loyal Order of Moose

• Decision Date: 13 November 1951
• Docket Number: No. 47784,47784
• Citation: 242 Iowa 1297,49 N.W.2d 880
• Parties: SCHROEDER et al. v. CEDAR RAPIDS LODGE NO. 304, LOYAL ORDER OF MOOSE.
• Court: Iowa Supreme Court

Page 880

49 N.W.2d 880

242 Iowa 1297

SCHROEDER et al. v. CEDAR RAPIDS LODGE NO. 304, LOYAL ORDER OF MOOSE.

No. 47784.

Supreme Court of Iowa.

Nov. 13, 1951.

L. M. Hullinger and Edward J. Dahms, Cedar Rapids, for appellant.

John C. Eichorn and Crissman & Bleakley, Cedar Rapids, for appellees.

MULRONEY, Justice.

Plaintiff operates the Standard Electric Company in Cedar Rapids, Iowa. He brings this suit against Cedar Rapids Lodge No. 304, Loyal Order of Moose for $1,056.95, alleging this sum is due on his oral contract to furnish labor and materials to remodel and repair the electric lighting and service in defendant's building. The petition alleges his performance of the contract and payments to him for labor and material in the sum of $5,821.23 and alleges the balance due, or $1,056.95 'represents the reasonable worth and value of a specially built motor-operated dimmer' furnished by plaintiff in fulfillment of his contract but not installed because defendant refused to permit him to install it. The petition alleges 'that the aforesaid motor-operated dimmer was specially designed and manufactured in accordance with defendant's specifications, for adaption to defendant's special uses, and is not suitable for sale to others in the ordinary course of plaintiff's business.' In response to a motion plaintiff alleged the contract was entered into with defendant's agent, John W. Dahl, acting on behalf of defendant.

Defendant's answer denies that any contract it might have had with plaintiff included a contract to furnish the dimmer; denies that it ever ordered the dimmer; and denies that it contracted with plaintiff to order the dimmer. The answer denies the authority of Dahl to act as its agent or contract in its behalf and raises the issue of the Statute of Frauds, of Section 554.4, Code 1950, I.C.A.

At the conclusion of the testimony the trial court withdrew the issue of the Statute of Frauds and, after overruling defendant's motion for directed verdict the case was submitted to the jury, resulting in a verdict for plaintiff in the sum of $1,056.95. Defendant appeals from the judgment thereon asserting error (1) in the trial court's failure to direct the verdict because of insufficient evidence to establish Dahl's authority to act as defendant's agent, and (2) in withdrawing the issue of the applicability of the Statute of Frauds to this case.

I. The record shows that John W. Dahl was the paid secretary and business manager of the Moose Lodge. He was in charge of defendant's building and he has twenty-five employees under him. He does the hiring and firing of employees, all of the banking for the lodge and is one of the three officers who signs checks. There was remodeling done on the building in 1946 and Dahl testified that he 'employed the contractors and so forth and was in charge of that remodeling.' He stated: 'I am in charge of the repairs that are necessary to the building * * * When repairs are made, I employ the contractors or persons to make the repairs.' Further, with respect to the repairs and remodeling here involved in 1947, Mr. Dahl testified: 'I had an architect draw the plans for this remodeling and designing--a Mr. Barnhizer, and I hired him * * * After he drew the plans, our Board of Directors and I sat down and discussed those matters with him and okayed them up to a certain degree * * * We did not have a general contractor--we had various contractors such as the carpenter contractor * * * plumbing contractor (and others).' In appears without question that Mr. Dahl hired plaintiff as the electrical contractor to do the electric work called for by the architect's plans. Mr. Schroeder testified that he was called to Mr. Dahl's office sometime in April, 1947 and he stated: 'I went over and found Mr. Barnhizer and Mr. Dahl. I had a conversation there with Mr. Dahl. He said that the Moose Lodge was planning to remodel the third floor of their building, and had a set of plans there, showed them to me, and asked if I was in a position to obtain the necessary materials and furnish the labor to install this job of remodeling. At that time, of course, material and labor were both critical and very difficult to get a hold of. I told him I could, after looking at the plans for a few minutes. I went over the plans and drawings with Mr. Dahl at that time * * * He told me that the main thing that he wanted to have done was to have all this electrical work finished by some date in the fall, I have forgotten the date, inasmuch as there was, I believe, a State convention of some kind that was going to be here for a week, and he was very much interested in expediting this job and getting it done so it would be finished before the convention. I told Mr. Dahl that I could do the job and that I would furnish the labor and material necessary to do it. * * * He said to get the material and get it done.'

There is no use detailing the work done by plaintiff and his employees in fulfillment of the contract. It is enough to say that plaintiff immediately commenced the layout work. The plans called for the dimmer control and as soon as plaintiff received instructions from Mr. Barnhizer as to the lights to be controlled he ordered the dimmer from the Van Meter Company. The dimmer arrived about the time of the convention and about the time plaintiff had completed all of the work with the exception of the installation of this dimmer. When plaintiff went to Dahl to tell him the dimmer had arrived Dahl said they were too busy then and after the convention plaintiff again saw Dahl and plaintiff testified: 'And he said he did not want the dimmer. I told him it was a specially ordered apparatus to fill this particular job, and it would not work any place else except in a place where exactly the same characteristics existed as were in this remodeling job, and I said 'We can't put it back into stock because it is something you don't sell only once in a lifetime,' and he said, 'Well, send it back to...