Sweeney v. Adam Groth Co.

• Decision Date: 10 December 1934
• Docket Number: No. 110.,110.
• Citation: 269 Mich. 436,257 N.W. 855
• Parties: SWEENEY v. ADAM GROTH CO.
• Court: Michigan Supreme Court

269 Mich. 436

257 N.W. 855

SWEENEY

v.ADAM GROTH CO.

No. 110.

Supreme Court of Michigan.

Dec. 10, 1934.

Action by Joseph E. Sweeney against the Adam Groth Compnay. From a judgment for plaintiff, defendant appeals.

Affirmed.

Appeal from Circuit Court, Ingham County; Charles B. Collingwood, judge.

Argued before the Entire Bench.

Shields, Silsbee, Ballard & Jennings, of Lansing, for appellant.

Payne & Payne, Albert McClatchey, and Corie C. Coburn, all of Detroit, for appellee.

BUSHNELL, Justice.

Plaintiff claims he was employed to solicit jobs for defendant, a foreign corporation, engaged in the business of contracting for the fabrication and erection of stonework in buildings under construction, for which defendant agreed to pay him certain commissions on each job so secured. He claims commissions and expenses due him amounting to about $18,000, consisting of 30 separate items. After receiving proofs, the court, on motion of defendant, eliminated 15 of these items because of insufficient testimony, and the jury returned an itemized verdict, finding nothing for plaintiff as to 8 of them, and a total of $2,827.52 on the remainder, including interest from the date fixed in plaintiff's bill of particulars. Motions non obstante veredicto and for a new trial were denied. Defendant alone appeals.

Plaintiff claims the only question in the case is whether or not defendant employed plaintiff, and, if so, did he produce the business and did defendant breach its agreement? Appellant claims plaintiff failed to prove his case, and that the judgment should be set aside because of some 29 errors on the part of the trial court, which are discussed under seven headings in the respective briefs.

It is claimed that the various officers of defendant corporation who dealt with the plaintiff had no authority to bind the defendant. Mr. Justice Fead held in Mead v. Detroit-Traverse Realty Co., 251 Mich. 478, 232 N. W. 355, that an officer in full charge of a corporation has, by reason thereof, apparent authority to execute contracts on its behalf, and hence any contract executed by him on behalf of the corporation is binding on it, provided that no showing is made of an express limitation of those apparent powers. See, also, Ceeder v. H. M. Loud & Sons Lumber Co., 86 Mich. 541, 49 N. W. 575,24 Am. St. Rep. 134, and quotations from some of our authorities in Long v. City of Monroe, 265 Mich. 425, at pages 437 to 440, 251 N. W. 582. The testimony is sufficient to show that the apparent authority of the various corporate officers dealing with the plaintiff was broad enough to bind the defendant to the contract plaintiff claims was thus created. We refrain from burdening this opinion with quotations from testimony and exhibits that permit no other conclusion.

Appellant claims that the quantum meruit testimony as to the rate of commission on the job designated as that of the Little Sisters of the Poor was improperly admitted. Error, to be reversible, must be prejudicial. Detroit Free Press v. Miller, 223 Mich. 333, 193 N. W. 779. The jury allowed nothing on this item. The error, therefore, if any, is not reversible, and need not be considered.

Appellant says that there was noncompliance with special verdict rule (section 7, Michigan Court Rule 37), and contends it was error for the court to submit a list of the separate claims to the jury and to charge them that each was to be treated as a separate and distinct case. Defendant waived all claim of error as to this when, during a discussion as to the renewal of certain motions at the close of the proofs, the following conversation took place:

‘Mr. Jennings: I wish to make that motion. I wish to urge that doesn't give us the protection due us on the various matters that have come in. Of course, the jury in its verdict can return nothing or any amount it may see fit under the proofs.

‘The Court: But they must return for each particular item the amount they find.

‘Mr. Jennings: If they are instructed to do that, that would protect us.

‘The Court: Yes, I will charge that in each case, it is practically a separate case and they must make a finding on each particular case.’

Was it error to instruct the jury that, if they found for plaintiff, they should include interest at 5 per cent. from the date plaintiff claimed his commissions became due, as set out in the bill of particulars?

‘It is a general rule here that a failure to pay money promised when by law it ought to be paid authorizes the allowance of interest in the nature of damages for the improper detention of the sum so promised. McCreery v. Green, 38 Mich. 172, at page 185.

When the jury found certain commissions earned on certain jobs, it followed as a matter of law that interest should be added from the due date of the commissions.

The calendar entries show that six days were consumed in submitting proofs to the jury, and the record contains some of the many exhibits. The court denied the jury's request to be permitted to take the exhibits into the juryroom. Appellant admits that this is a matter of discretion, but argues...