*1 court to hold that it error to find as a existed Brown v. was vehicle. factors Such matter Aldrich, permission of law did not supra. the court said: There exist. employer-employee “In addition to the Appellant is
relationship entitled have his evidence evidence discloses question heard on the consent justi- use existence of other factors pickup of the conclude drawing fied trial the in- truck. We holding trial court permissive erred in that the ference use: the circum- record shows there stance is no issue that the car allowed to re- material was camp; main fact. unlocked at that no oil, check gas, was made summary judgment is reversed and mileage determine whether or proceedings cause further remanded for ranch; it was used off the that said car consonant expressed. with the herein views frequently had high- been used on appellant. Costs to
ways on inter-ranch and other business unlicensed, while was at least McFADDEN, TAYLOR, SMITH and one accompanied by occasion had been KNUDSON, JJ., concur. himself; Aldrich and that neither Gon- zales discharged nor Leon
employment alleged after the disobedi- orders,
ence of but was retained in employ
Aldrich’s
as before.” 176 P.2d
at 90.
knowledge Nagel’s employees; CO., Inc., to all HARTWELL EXCAVATING corporation, Defendant-Respondent. Clampett employee retained as an also No. 9508. accident, up Nagel after the at least until Supreme Court of Idaho. Clampett’s depo taking time of the Oct. sition; Clampett had driven and had Rehearing 17, 1965. Denied Nov. operating Nagel been observed truck. factors, together These with the existence relationship employer-employee be Clampett, Nagel compel
tween
Holden, Kidwell, Falls, Holden & appellant.
Petersen, Olsen, Moss & respondent.
Hartwell, through contacted its agent, Dehnert, Kenneth and for the J. purpose establishing such credit submitted appellant respondent’s financial state- ment. 11, 1960,
Under date of November re- spondent completed application form fur- by appellant “Application nished entitled irregularity Contract Bond.” Some occurred regarding the name of the application addressed; to which the was however, application it is admitted that the was upon by appellant. made to and acted application appellant, Pursuant to said through Dehnert, supplied its project. a bid bond for the together respondent’s This bond was City submitted to the for consideration in awarding a contract relative to the con- project. Respondent struction of the thereafter notified that it was the success- ful requested bidder and was submit together with an executed proj- contract for KNUDSON, the construction of the Justice. Respondent thereupon requested ap- ect. Shortly prior to November re- pellant, Dehnert, through pro- its Inc., spondent, Excavating Hartwell required performance vide the bond. seeking bonding to establish a line of anticipation request At bidding credit in an abstract for a con- City (herein- project tract with the of Idaho Falls bids relative to the was fur- by respondent. Upon after “City”) learning referred to as construct a nished public project respondent’s substantially works known than as The West bid was lower System (hereinafter engineer’s $43,658.76 Side Sewer referred to estimate and below “Project”). period bid, During appellant proceeded said re- next low spondent, through president, George investigation concerning A. make re- further
spondent appellant and its bid. Thereafter (2) The finding court erred in that ap- pellant’s demanded as a condition the issuance of Dehnert had au- performance respondent fur- thority bond representations respond- make security nish collateral in additional in concluding ent and was approximately $40,000.00. Re- amount of estopped deny agent’s apparent au- provide spondent unable to such securi- thority. was
ty consequently could not obtain (3) concluding court erred in Respond- appellant. formance bond from respondent obligated was not to reimburse requirement being meet ent’s unable to payments by appellant made furnishing performance bond made it City. to the impossible enter the contract for it to into project. for the of the construction In considering the first mentioned upon appellant Pursuant to demand made respondent’s contention find that we in appellant paid to city attorney, answer as an affirmative defense obligation City, pursuant under the to its alleged: $8,770.10. Appellant the sum “That at all times mentioned in the respondent demand thereafter made complaint existed in the con- there paid indemnify appellant for sum so Falls, Idaho, struction in business liability City. Respondent denied vicinity and well a well established this ac- appellant commenced therefor usage to the understood custom recovery amount of said seeking tion surety a bid effect if a executes in- respondent allegedly under the against principal in and the favor of a in the provisions contained demnification bidder, that principal successful is the application. had before Trial was surety execute a will jury. sitting Judgment court without principal for the behalf appellant, from denying recovery to entered contract, all as performance of said appeal judgment this is taken. which plaintiff knew understood.” well twenty-three Appellant has enumerated error, por- assignments substantial allegation put in issue is sufficient to This may grouped be into three tion of which practice here involved as of the business principal as follows: contentions Falls and the area it existed in vicinity. the issue as to Appellant finding raises (1)The trial erred usage custom was alleged or whether the usage applicable or to the fact- custom alleged. area to exist shown ual in this case. situation generally recognized general practice It is that a cus dence contrac- * * tors, usage may rights tom affect the *.” party of a to a contract must he one that In the instant case called Mr. length has existed for as to of time Arrington, a resident of Idaho who practiced generally become known and engaged general contracting had been in the question the area in reference years, twenty-eight doing business work *6 particular trade it is or business with which Montana, Wyoming, in Utah and Idaho. Am.Jur., Usages connected. 55 and Cus He testified that a custom existed in the toms, 4-9. §§ type area in of Falls this business performance
relative to the issuance of
company
bonds
bonding
a
when the
The foundation for the introduc
company
bonding
contractor to whom the
tion
usage
of evidence of
or custom is a
bond,
being
has issued a bid
is successful in
showing of a series of acts of a similar
on; essentially
offered the contract bid
performed
character
at different
times.
is,
paraphrase
testimony,
custom to
that
Ames Mercantile Co. v. Kimball S.S.
you
performance
arrange
a
bond at the
D.C.N.D.Cal.1903,
the court had under consideration an issue bond? platform as to whether the handrail on a years, experience, “A In over 28 our safety general was a device in in the use performance been forth- bond has industry building construction and stated: every job immediately coming a bid bond been issued.” has usage “We have held that custom or Shydler, opinion. a resident a matter of The witness Harold fact and not * * * but, general con- proof engaged fact in the of Idaho life, may by testimony tracting be of his established either business most * * * specific uses, that he years, testified twelve evi- Idaho about performance bond? a to write his refused and that within a custom knew such my not, No, own “A I do neither known of experience “I have never experience I heard of it other nor have experience my where within own occasion case; however, particular than this contractor a been issued to has may happened. But have refused company then bonding and the . known of particular I area have never other than issue certainly occurring It’s it ever before. specific case.” happened, far I am con- never as Metcalf, he witness, A Mr. testified cerned, my business.” bonding own Falls, engaged in a resident of Idaho agency in
conducting
insurance
general
Catherman,
employee of
I.
One
E.
years;
approximately eight
that area for
company,
called
performance bonds
he
bids and
solicits
his
describing
In
for cross-examination.
Guaranty
Fidelity &
for the United States
employee
appellant in this
duties as an
Company;
like custom
that he knew
state,
“Well,
Branch
he
I’m the
stated:
my experience the custom
and that “in
office;
I’m
Manager
the Boise
the State
is successful
a contractor
appraiser;
Special Agent, Inspector,
Agent,
bid,
issue
will
awarded the
practically
company in
all activities of the
performance bond.”
exception
adjusting.”
the State with
*7
Larter,
a resident of
Mr.
This
testified as follows:
witness
bonds,
insurance,
real estate
engaged
any
“Q
you
Do
know of
situations
business,
writing
included the
your com-
the State of Idaho where
contracts,
public
works
contract bonds
pany
bid bond
has
written a
has
custom,
a
that he knew
testified
per-
a
through
failed to follow
further
stated:
bidder ?
successful
formance bond
experience,
my
I
“A
own
have
From
“A No.”
it was
a bid bond until
never written
they
Dehnert,
sup-
company
appellant’s
who
understood with
Mr.
involved,
performance
being
going
plied
to write the
when
were
the bid bond here
interrogated
I
made to
bond.
have never
that —it’s never
to a statement
relative
up
years;
I
performance
in 26 and one-half
come
to a
Mr. Hartwell
relative
any problem
on it.
never had
stated:
Well,
say it
an answer
situation,
“A
I would
“Q
you
Do
of a
know
before,
quite a few times
given
I have
your
experience,
a bid bond
own
where
a bid
will issue
company
if the
has
been written and
has
they
usage
bond the chances are
will issue
We conclude that the
de
Or,
performance
bond.
more often
scribed
reasonable
witnesses is a
one
they
my
answer would be
would not
and did not
principle
contravene
they
issue the bid bond unless
would
law. This court has held that
custom
a
**
*
performance
clearly proved.
must be
Dingler
Simp
issue
bond.”
v.
son,
83 Idaho
Although
I don’t want a bid bond because I may not be vary introduced to or contradict just hung, can’t—I’m that’s all there plain terms aof unambiguous con get is to it. If I a bid and am low tract. Cooperative v. Gramkow Farmers get bidder and can’t Co., Irr. Ehlinger 277 P. bond, then I what do do? I realize Washburn-Wilson Seed 51 Idaho that a bid bond is forfeit if the However, proof P.2d 188. usage of a put up, formance bond isn’t and I justified custom is ambiguity when there gamble price can’t afford to uncertainty upon the face of a written specifically bid bond. So I asked him contract arising out terms used there so I know for would sure where I was in, may be used to the extent clear at, because I wouldn’t have turned ing obscurity. There are established well given bid if he hadn’t a bid bond me *8 general admissibility governing rules get assurance that I would a evidence, of such specifical- I we consider formance bond. asked him ly.” quoted following statements which are
540 Am.Jur., 55 Usages, 27, to be meaning par- real § and intention of the propriate in this ties, case: only per- but such evidence
missible cases can- where the intent general proof “The broad rule is that not be ascertained from the terms of usage of a valid or custom is admissible the contract.” to annex instru- incidents to a written general It is recognized also be a
ment, construction, to aid in and to usage rule that when a of there is known parties ascertain the intention business, persons trade or carrying on that in reference to which matters about trade are deemed to have contracted in silent, provided the contract usage, contrary reference to the unless usage contradictory or custom is not appears. California Lettuce v. Growers plain or terms inconsistent with the Sugar Company (1955), Union 45 Cal.2d agreement of the written its effect 474, 785, 496; P.2d 289 A.L.R.2d Simons 49 ingraft is not to add new to or ** Stokely 1950), 216 P.2d (Wash., v. Food agreement stipulation or thereon. Sellery, (Wyo., Simpson Arch v. Inc. not, usage Evidence of and custom is 1961), Ringle 911; Strong 360 P.2d however, purpose of admitted for the (1915), 573, Kan. In 152 Robin P. varying plain terms contradicting States, son v. United 80 U.S. Wall. contract, unambiguous of an and will L.Ed. it is stated: permitted agree- not be to overturn parties. Evidence ment between the subject “Parties who contract mat- permitted purpose of custom is concerning usages ter known ascertaining meaning con- of a prevail, by implication incorporate them ambiguous or tract where otherwise agreements, nothing into their is said providing uncertain of for incidents contrary.” of the fundamental contradiction court stated contract, sup- The trial in substance provisions usage and conclusion' evidence circum- plying omissions under certain used case custom was and considered in the stances which have occurred *** agree- interpretation of as an aid to the agreement parties. at the to arrive ment to enable the court interpretation Where construction parties. meaning involved, real intention of a written instrument is application for parol The court considered purpose permitting primary ambiguous be (Exh. 2) introduced contract be evidence of custom to ob- appellant was respect to whether at enable the to arrive is to *9 ligated the application to write after “That the under for con- by the bid bond had been it. bond, by parties executed The tract it is intended application “Application was entitled for only the bid be issued as a providing Contract Bond” and per- after for preliminary issuance of name, address and relating other data formance and it intended un- is applicant all (bid, listed three bonds der application of the terms payment) following formance and appraisal in the applicant a risk of as form: plaintiff sufficient issue all for the aspects three is of the contract bond
“Amount of Bond? Bid
Per-
$ 5%
completed prior
to be
to the issuance
Payment
formance $
$
100%
100%
of the bid bond.”
Price,
175,000.00
Contract
Per unit
$
Est.
includes
It
well settled that a contract
only
expressly but also
not
what is stated
Bid Opening Date 11-22-60
necessity
implied from its
that which of
Sellery,
Simpson,
language. Arch
Inc. v.
given?
To
(Obligee.)
whom
Give
supra;
Gottstein,
Stusser v.
178 Wash.
full name and business
If to
address.
Barstow,
P.2d
103 Mont.
Severson
corporation, give
corporate
exact
title
526,
the doctrine the to bind the are seek to invoke changed practical such that is party there dif- third no that where a 544 estopped deny apparent position thereby agent’s acted to his to the
his upon authority particular act or detriment reason reliance an to do the of authority, apparent controversy. agent’s of acts in Hammitt v. Vir- exercise Co., ginia Mining principal estopped against the 32 Idaho the is as agent’s Spokane party denying Cattle Loan third the P. Madill v. 45; Stout authority. rule 230 P. is well known protection McNary, 625.” applied 75 Idaho P.2d should be for the parties of third who do not know the proper call to We deem it to attention agent’s authority.” extent of the real supports the some the evidence question There is no but agent act- court’s the statement authority changed upon its in reliance such scope apparent his au- ing within the regard position in this its detriment and to thority. acknowledges upon Appellant the court found: agent departmental approval securing executing said bid “That so authority sign contract to Dehnert submitting bond and bid bond and said bonds, involved, behalf such as are here City the defend- to the as appellant; applicant not informed prejudice changed position to ant its ; approval procured to when or how such it action was in that virtue such applicant he must agent what tells the ap- obligated the terms of under to ob- he furnish order do what must plication the ex- for contract bond to agent appellant; tain a bond from payment plaintiff made tent that applicant whether the notifies the obligee to the named said issued; signs plied for will be pursuant terms the bid fact; attorney in appellant’s such bond obligated then would be said defendant directly communication sent normally no plaintiff the ex- indemnify the relative by appellant applicant plaintiff.” payment by the tent such writing of a bid the authorization for case, supra, In Co. said Texas bond; au- also stated: contractor thorizes its advise write the bond authority he has whether within agent has acted
“Where appel- general policy of is a authority fact scope of his through its to handle all matters lant party dealing with the and the third Although attorney in fact. agent or appearance local agent has relied *12 1, is entitled “Un- detriment, plaintiff’s Exhibit authority party’s to such accompany- Authority derwriting Letter of principal theory the becomes then in
545 relating ing Attorney” Power of to Mr. that acting scope Dehnert was within appointment agency apparent Dehnert’s as at- of his authority repre- when he torney fact, promised discloses construction sented to that the appellant obligated pro- contract bonds must be submitted to the to would office, by respond- it Dehnert vide the supervising is admitted bond if the public bidder, as a ent was the such instrument is not filed successful and that pellant agent estopped deny authority. document nor did ever show to to Mr. Hartwell. We have examined other contentions appellant’s discussed in repeatedly has stated brief and do not
The rule
been
find
Having
reversible
decided
agent
where
acted
error.
court that
authority
the trial
scope
finding
court’s
and conclusion
apparent
of his
within the
estopped
deny
agent’s
its
party dealing
the third
authority
obligate
provide
appearance
authority
it to
has relied
formance bond
detriment,
theory the
and that
breached
party’s
to such
obligation
agent’s
do
deny
so are
principal
estopped
sustained
becomes
record,
particular
judgment
authority
affirmed.
to do the
respondent.
Costs to
controversy.
act
v.
or acts in
White
380;
217,
Doney, 82
351
Man
Idaho
P.2d
McQUADE,
J.,
TAYLOR, J.,
C.
312,
ley MacFarland,
P.2d
327
v.
80 Idaho
concur.
Peacock,
758;
Company
77 Idaho
Texas
v.
949;
McNary,
408, 293
Stout
75
P.2d
v.
McFADDEN,
(dissenting).
Justice
625;
Spokane
99,
v.
Idaho
P.2d
Madill
267
There are certain facets
cause
Co.,
39
exercise, authority agent’s authority subject of an cannot *14 beyond deemed to extend that ac- not principal liability upon the transac- to a him, tually upon to the ex- conferred agent tion with if the he should know authority clusion whatever of acting improperly.” the is might exist in of the absence Co., See also: Hartford Fire Ins. v. knowledge.” Agency notice 2 C.J.S. McAvoy, 60, 242, (1935); 177 57 Okl. P.2d 92, p. 1188. § Collier, Indemnity Travelers Co. 205 v. Peacock, 247, 77 Idaho Company In Okl. 153 American (1951); Texas v. 237 P.2d 408, Surety Lind, 280, 326, v. 132 Wash. P. 293 P.2d this court stated: 232 ; (1925) Co., Brewing
“Under the v. Pabst 128 F. circumstances shown Cox herein, (CA Quaker 2d agen- 10th); with the the McComb limitations of cy appellant’s representatives Oats (CA 5th). of known F.2d 422 187 respondents, respondents to could my It is conclusion that the trial court was acquire rights against appellant relying any apparent in error in au- contrary to those known limitations. thority part on the of Dehnert the basis cases).” (Citing discharging for its lia- the defendant from bility pay- to reimburse the for Am.Jur.2d, p. 481, In 3 Agency it is § ments made. The statement attributed stated: Dehnert, if after the bid bond was always competent prin- issued, “It is for a principal per- his to issue cipal authority agent, limit the his bond, payment formance and be be- would and if such yond limitations have been authority. only his At most an it is brought party attention agent’s opinion principal would what dealing, with whom the future, is do the is and not a statement of power principal to bind the is defined 656, Estoppel fact. See existing Am.Jur. thereby. Accordingly, general §52; rule Annot: 115 A.L.R. A.L.R.2d agent, that one who deals with an bid,
The trial court in its conclusions of law event of a a successful stated: bond, ultimately, formance if neces- ” * ** sary payment a bond. application “That the for contract bond application constituted an for contract predicated a conclusion on the Such said contract bond include proposition only single there was requirements bonding all the re- application offer submitted in- System Project West Side Sewer spondent encompass all The the bonds. bond, cluding a bid event application “Application was entitled: bid, performance successful Bond”, a num- Contract it consisted of necessary, ultimately, payment applicant, ber of blanks to be filled applications and that when said together specific provi- awith number of plaintiff accepted
were a bind- items, sions. other among whereby ing contract formed plaintiff provide, data: obligated submitted the following Payment $100% $ $100% Bid Performance
“Amount Bond. 5% per 175,000.00 Opening Price, unit Est. Bid Contract $ Date 11-22-1960. price measure, probable total per give so
If unit state contract Contract. * * * address. (Obligee.) To name and business Whom Given? Give full Falls, Idaho_ _City (give explanatory detains) Side Sewer_ Nature of Contract West *15 System. Mains and service lines.” Sewer accepted by on behalf not or executed is application also one of its The contained as obligee.” provisions following: the by the re- an application The offer appellant the “16. the the issue spondent That reserves to have right to for Until this offer surety sought. decline to issue the bond bond no made, be application hereby accepted appellant, there could by which As in respondent. may against liability that no it and claim be made between liability contracts, no consequence Company fail- of its of insurance case by accepted bond; has been shall arises the offer ure to execute such nor until 12 Law surety. Insurance claim be made in case the bond See: any 549 Practice, Appleman, 155 This in which offer an been made § plication specific 'was submitted for one terms power as to create a to make a job being respondent. by separate No by one con- series of a contracts series acceptance templated upon separate acceptances. closing the offer The immediately all by three of separate the bonds should one these contracts Otherwise, respond- acceptance been have written. one leaves offer still perform- subsequent upon ent accept- would have insisted revocable toas payment ance bond and bond at same ance.” Only time that the bid bond was written. Contracts, Restatement of Law of § by considering to be an instrument this provides: does its more than one offer containing “A revocable offer contemplating meaningful. provisions become various independent series of by sepa- contracts Initially by it was an offer acceptances rate may effectively be re- surety issue power voked so as to terminate the respondent’s city, validity assuring the contracts, though create future one or respondent’s bid for the sewer con- bid. If proposed more of the contracts have accepted by city, then the tract was already by been formed the offeree’s effective, e., i. second offer would become acceptance.” application became offer then an Contracts, on Williston 3rd Ed. states: ultimately performance p. 183 58: §
payment bond. contemplate “Most single offers specific application terms of the acceptance by by the offeree an in- emphasizes (Sec. 16) construction promise divisible act or an indivisible placed application, be for it is possible, set promises. It is how- provided reserved “the ever, request- amake divisible offer right to decline to issue the for which ing promises a series of acts or to be application was made.” given time, time agreeing comparable situations, Dealing with it is give perform- return "a series Contracts, stated in Corbin § ances each of which is to be set off as follows: against promise act or corresponding “There one sort of case in of the offeree. If an offer is of this the offer is either not made irrevocable may divisible character be revoked part express but also only any acceptance before *16 acceptance. notice of This the case portion is as offer of the. still 550 502, Inc., Idaho, 83 Idaho 365 P.2d acceptance
unaccepted Foods after even Rest, 958; pro- of Law of Contracts 246. transactions § some of the series of posed by the offer.” Finally my is that the trial conclusion court the trial my It conclusion in in its conclusions of law court was error acceptance determining that was in error in plaintiff payment by and that the the by application to issue appellant of the the City in the of the the Idaho Falls amount bond, appellant then to issue the bid bound voluntarily. pay- made This bid bond was payment performance and bonds the ment, in of the bond was the face amount by city. respondent’s accepted being the only made to made after demand been so, accept correct And this is even we of the bond. pay the amount by that there was finding the the trial court Mayor signed by This demand was the usage bonding com- if a a custom and “that City copy of the Idaho and a the public work pany for a wrote bid bond demand, covering letter was forward- write would also the construction it by attorney. appellant city Ex- ed if the formance bond for such construction by ception procedure was taken party it had written the bid bond for which respondent, there were which asserts was the bidder.” successful authority being granted no minutes of such attorney. city by city mayor or usage, and As concerns custom Nonetheless, accepted money city usage repeatedly custom and held that note, paid by significant to appellant. It is vary cannot be used to or contradict however, that there no contention plain un terms a contract which attorney mayor city were fact Bank v. Puget Nat. ambiguous. Sound so If no authoriza- authorized. there was Co., Idaho 245 73 C. B. Lauch Const. demand, that tion for them to make such Coopera 800; v. Farmers P.2d Gramkow proof to would become a matter of have Co., 277 P. Irr. tive Accept- respondent. be established Seed Ehlinger v. Washburn-Wilson city the amount ance council of respondent’s If the P.2d 188. payment ratification constituted a usage concerning custom contention they attorney, if mayor city acts of the correct, express provisions of the were Thus, the con- were fact unauthorized. application to the effect court was clusion reached the trial right to issue reserved the to decline error. abrogated and made mean would be stipulated parties respective of use ingless, beyond function which is concludes the the event the court Frozen Branom v. custom. Smith *17 attorney’s fee, the court to an entitled The thereof. issue fix the amount should attorney’s not considered fee was
the court. evaluation trial court
The erred presented applicable defenses
the law allegations appel-
by respondent. The complaint
lant’s the evi- were sustained
dence. judgment cause should be
reversed and the cause remanded for entry conformity
of new conclusions of law expressed herein views and for
entry judgment appellant, favor what,
with the trial court to determine
any, attorney’s fee should be awarded.
SMITH, J., concurs in dissent. 407 P.2d ANDERSEN, Plaintiff-Appellant,
Claire B. ANDERSEN,
Robert A. Defendant- Respondent.
No. 9695.
Supreme Court Idaho.
Oct.