189 Iowa 350 | Iowa | 1920
The general nature of the defense set up is that the plaintiff had chosen to enter into a contract personally with Mardis, and that it must look to Mardis alone for payment; that defendant is not liable to plaintiff as an undisclosed principal, because Mardis did not assume to act as agent in such transaction, and because, further, Mardis ivas not authorized as agent to enter into such a contract in his own name; that, in October, 1917, the plaintiff rendered a statement of account to Mardis for an amount then accrued on its contract, being the sum of $1,200, and that the defendant thereupon paid such amount to Mardis, in the belief that the plaintiff was looking to Mardis for payment. The sum total of plaintiff’s contract was $2,011, of which amount, the sum of $1,500 has been paid. Defendant pleads also an election by plaintiff to look to Mardis as its debtor, and pleads an estoppel by reason of the defendant’s payment to Mardis while the plaintiff was treating Mardis as its debtor.
To put the argument of defendant in a very few words, it contends that, though Mardis was constituted its agent
The pivotal question of fact is: Did Mardis intend to enter into the contract with plaintiff for the benefit of the defendant, and pursuant to his contract with it? If yea,' did he exceed his authority by entering into such contract in his own name? We may set forth here sufficient of the contract to throw light upon this question, without assuming to set it out at length:
“This agreement made this 22d day of August, 1914, by and between J. C. Mardis Company, as party of the first part, hereinafter designated the ‘contractor,’ and the Iowa Congregational Hospital Association of Des Moines, Iowa, second party,, hereinafter designated the ‘owner,’ witnesseth: That in consideration of the mutual agreement herein contained the parties agree with each other as follows:
“First: The contractor agrees that he will construct in the most substantial and workmanlike manner, the following described work, to wit: A 3-story and basement and subbasement, fire-proof hospital building at Fourteenth*354 and Clark Streets, Des Moines, Iowa. Alternate No. 3 may be accepted by the owner provided he does so within a reasonable length of time. Alternates No. 2, No. 5 and No. 7, are a part of this contract. i! * *
“Sixth: The owner liereby appoints the contractor his duly authorized agent for the employment of all labor and purchase of all material necessary for the construction of the Avork and authorizes the contractor to purchase all said materials for the owner’s account. The owner agrees to pay the weekly pay rolls and all material and other bills direct Avhen same have been passed for payment by the contractor, subject to the conditions set forth in Section eleven (11) of this contract.
“Seventh: The contractor shall receive all material and check same as to quality and quantity. * * *
“Eleventh: The contractor agrees that he will not purchase any materials for the owner’s account for use in the construction of the Avork unless, or until, the price and quantity thereof has been approved by the OAAmer. He avüI •furnish the owner a statement of the prices of all materials he proposes to purchase; and if within five (5) days from delivery thereof to the OAvner, the same shall not ha.ve been disapproved in Avriting by the owner, the price or prices shall be deemed to have been approved. The contractor, however, shall have the right to make small purchases from time to time of materials that shall be required, without submitting the price thereof to the owner, and may purchase same without further authority from the OAvner; the total, hoAvever, of any individual purchase shall not exceed three hundred fifty dollars ($350.00). In case the OAvner shall disapprove any of the prices submitted by the contractor, the extent of any delay caused thereby shall be added to the time in which this contract is to be completed. # * #
“Twelfth: The contractor agrees to render the OAvner a weekly statement of all pay rolls and a monthly statement of all expenditures, which the owner agrees to pay to*355 tlie contractor within five (5) days after receipt of each statement. * * *
“Fifteenth: Upon final completion and final acceptance by the owner and upon the payment by the owner, to the contractor of the amount then unpaid, and owing to him the contractor agrees to execute and deliver in due form a general release under seal to the owner of all claims, demands and cause of action, of every nature, and to give the owner final and complete receipts and acquittances.”
We quote as follows from the contract entered into by Mardis with the plaintiff:
“This agreement made and entered into this 3rd day of April, 1917, by and between J. C. Mardis Company of the first part and Love Brothers, Incorporated, of the second part, witnesseth: That the said Love Brothers, Incorporated, agrees and hereby binds himself to furnish all labor and material necessary to execute and finish complete elevator enclosures and stairs for Iowa Congregational Hospital as directed below and according to the drawings and specifications prepared for said work by Proudfoot, Bird & Bawson, architects, for and in consideration of the sum of $2,011.00 for the work done on the aforesaid building. * * i:‘
“It is further agreed by the party of the first part, that in consideration of the faithful performance of this contract by the party of the second part he hereby agrees to pay the said Love Brothers, Incorporated, the aforesaid sum, 85 per cent to be paid as the work progresses, and in accordance with the terms of the original contract between the first party to this contract and the owner of the property. Final payment to be made within 30 days after completion of the work and acceptance of same by the architects.”
We have quoted sufficiently from the contract of plaintiff to show that it purported to be entered into pursuant to the contract of Mardis with the Hospital Association.
If there ivas anything in the contract between Mardis and the Hospital Association which directly required
It must be said, therefore, that the contract Avith plaintiff was entered into by Mardis for the benefit of his principal, and that there was no breach of duty or excess of authority on his part in entering into the same in his own name.
It is also urged that the decree entered in the district court is inconsistent in that personal judgment was entered against both the principal and agent, Mardis. It is true that, ordinarily, if the principal is liable, the agent is not. But this is not necessarily so. It is always in the power of the agent to make himself liable, by a personal undertaking on his part. Whether Mardis did so in this case, we will not inquire. He did not defend, and has not appealed. The question of his liability, therefore, is not before us. The decree entered below must be — Affirmed.