Cascade Construction Co. v. Perrine

RENTTO, Judge. This is an action to recover money claimed to be due under a contract. After trial to the court without a jury judgment was entered for the plaintiff in the sum of $2240. Defendant appeals. Plaintiff corporation, headquartered at Great Falls, Montana, and authorized to do business in South Dakota, is engaged in the building and home improvement business. In getting contracts it utilizes the services of traveling representatives. Leo — 304 — Branscum, one of these, secured the job and conducted the negotiations leading to the contract with which this litigation is concerned. The contract in question, dated July 19, 1966, between the Cascade Construction Company and Susan Perrine was executed on behalf of the plaintiff by Branscum. Under it plaintiff agreed to furnish the necessary materials, labor and workmanship to cover the exterior of the house in which defendant lived near Rapid City, South Dakota, with metal siding as specified in the contract for $2300. Defendant in turn agreed to pay this amount to plaintiff or its order, on completion of the work undertaken, at Great Falls, Montana. No down payment was required or made. In this action plaintiff claims that it fulfilled its obligation as required by the contract, but that defendant wrongfully refused to pay it as she agreed. Her answer in substance admits that she entered into the contract as alleged and that the obligations required therein of the plaintiff have been performed, having been commenced on July 21 and completed on August 3, 1966. She does not contend that the work done or materials furnished were not as called for by the contract or in any respect defective. Nor does she claim that she paid the plaintiff as agreed in.the contract. As a further answer and affirmative defense and as an accord and satisfaction she alleges that on July 25, 1966, before the job was completed, Branscum as an official representative or agent of the plaintiff, requested payment of the contract to him in advance allowing her a 5% discount, and that he also leased from her a shed in which to store some siding at a rental of $60. She further alleges that he orally agreed with her to accept $2125, the contract price less the rental and the discount, in full payment of the contract. That pursuant to this agreement she gave him a check for $2125, payable to him, drawn on her account in a Rapid City bank. That on delivery of the check he endorsed the contract paid in full and later cashed the check. The proceeds thereof he converted to his own use; Other pleaded defenses and her counterclaim appear to have been abandoned. — 305 — The findings of fact and conclusions of law that she requested conformed to these claims of her answer and affirmative defense. The court rejected them and as requested by the plaintiff it found as follows: "FINDINGS OF FACT I. That the Defendant, Susan Perrine, was contacted by one Leo Branscum for Cascade Construction Company. II. That Cascade Construction Company furnished the contract forms to Leo Branscum. III. That Susan Perrine and Cascade Construction Company entered into a contract on July 19th, 1966. IV. That Cascade Construction Company furnished materials and labor pursuant to the writing which Leo Branscum subscribed his name as representative of Cascade Construction Company in the amount of $2,300.00. V. That encompassed in the writing between the parties there was a provision as follows: 'NOTICE — FOR YOUR PROTECTION MAKE ALL CHECKS PAYABLE TO CASCADE CONSTRUCTION COMPANY.' — 306 — VI. That the Defendant, Susan Perrine, saw the writing on the contract form and that she signed the same. VII. That the writing between the parties did not provide that Leo Branscum was given authority to collect money from Susan Perrine. VIII. That payment was made by check made payable to Leo Branscum personally. IX. That the Plaintiff, Cascade Construction Company, did not receive the proceeds of that check. x. That the Defendant, Susan Perrine, did not pay by check made payable to Cascade Construction Company. XI. That Cascade Construction Company did rent a storage shed from the Defendant, Susan Perrine, said rental in the amount of $60.00." On this appeal defendant claims that these findings are not supported by the evidence. We have carefully reviewed the entire record before the trial court in this case. While the evidence is conflicting and in some instances confusing the facts to be found therefrom were for the trial court. Dolan v. Hudson, 83 S.D. 144, 156 N.W.2d 78, adhered to 159 N.W.2d 128. In SDCL 1967 15-6-52(a), formerly RCP 52(a), it is provided that: "Find — 307 — ings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." We are not persuaded that any of these findings are clearly erroneous. The question decisive of this appeal is whether the delivery of the described check by the defendant to Branscum and his cashing of it was payment of the amount due plaintiff under the contract. We think the trial court's conclusion that it was not is proper. SDCL 1967 59-3-4 provides: "Every agent has actually such authority as prescribed by this title on 'agency' unless specially deprived thereof by the principal, and even then has such authority ostensibly except as to persons who have actual or constructive notice of the restriction upon his authority." This appears to be a codification of the rule at common law. See 2 C.J.S. Agency §§ 92, 107(2); 3 Am.Jur.2d, Agency, § 107. Whatever other authority Branscum had in the matter of collecting payment due under the contract, which we need not decide, clearly the contract deprived him of authority to accept in payment a check made payable to him personally. It has been held that authority to take as payment a check payable to the principal, does not authorize the agent to take, as such, a check payable to himself, even absent a specific restricr tion to that effect. Schaeffer Brothers and Powell Mfg. Co. v. Williams, Mo.App., 52 S.W.2d 457. Since the defendant had notice of this restriction the payment she made was ineffectual to extinguish the debt or discharge her therefrom. This result may seem harsh, but the loss to defendant was made possible by her when she gave the check in question to Branscum knowing full well that in making it payable to him she was proceeding contrary to the written warning in the contract. The court is presented with such findings of the trial court supported by evidence and it has no choice in this action at law but to affirm the judgment. In argument defendant urges — 308 — that since the plaintiff did not confirm the agreement of July 19th in writing, there was no contract between plaintiff and defendant, but only one between Branscum and the defendant. This view is inconsistent with the position taken by her in her pleadings and proposed findings. Moreover, we do not construe their written contract as containing a requirement to that effect. In arriving at the amount of its judgment the court gave defendant credit for the $60 due her as rental for the building leased from her by plaintiff through Branscum for the storage of siding. Affirmed. BIEGELMEIER, P. J„ and ROBERTS and HOMEYER, JJ„ concur. HANSON, J., dissents.