A jury found for plaintiff against defendant bank in the sum of $5,418.54 *Page 204 on the sole question of whether or not the bank made an express promise or agreement to pay for building materials furnished by the plaintiff.
Defendants Friedman were owners of property at Brush and Westminster in the city of Detroit which was incumbered with a mortgage in the sum of $12,000. The bank foreclosed and obtained a sheriff's deed dated January 2, 1930. About this time Friedman had ordered materials from plaintiff and others not connected with the instant litigation except as witnesses for plaintiff. Work of repairing and remodeling the property started immediately after the sheriff's deed was given and plaintiff continued to furnish material until July 23d, it all being billed as "sold to H. Friedman." Plaintiff's agent and attorney filed a claim of lien against the Friedmans, as the owners, on September 8th, but the lien was not foreclosed. The bank gave the Friedmans an option to repurchase the property which was extended to September 12, 1933, and permitted them to remain in possession.
Plaintiff began action by attachment against the Friedmans on January 13, 1932; afterwards the attachment was dissolved and the bank was joined as a defendant in the assumpsit action.
Daniel F. Zimmerman, chairman of defendant bank's board of directors and through whom plaintiff claims to have contracted with the bank, died October 6, 1932, three months before the bank was made a party defendant. Arthur Brown, attorney for the bank, who was mentioned in the testimony as having participated in certain negotiations for renewal of the mortgage, died September 21, 1932, and C.J. Walz, president of the bank, died June 8, 1935. The trial of the issues began on November 4, 1935, and the rule restricting the testimony of surviving *Page 205 witnesses as to matters equally within the knowledge of the deceased was insisted upon and followed. 3 Comp. Laws 1929, § 14219.
Plaintiff produced in support of its contention certain employees of other material men who testified that the bank agreed to pay for materials furnished to the Friedman job. That of Herbert Rachar, credit manager for Ernst Fuel Supply Company who met Zimmerman and Friedman on the job in March of 1930 is typical. He said:
"I told him that we had been supplying the job, that is, the Ernst Fuel Supply Company had been supplying the job with masonry materials for about 30 days, and that I had found out in the meantime while we were making deliveries that the — that his bank had a sheriff's deed, and that I was there for the purpose of finding out who we were to look to for our money; that I was not satisfied with Mr. Friedman from that point on. And he said that — that the job had — it had — gotten into a mess, and that they had taken it over and were going to clean it up and pay for the materials. I said that we had made up our minds — I had made up my mind that we weren't going to do anything further until we had something definite on that point. He said, 'You don't need to worry. We have taken over the job and we have made that same arrangement with other people supplying the lumber, and he said, 'Yes.' 'And they all right.' I saw one of the Grace Harbor trucks standing there, and I remarked that they were supplying the lumber, and he said, 'Yes.' 'And they are going to continue to supply because we made the same arrangements with them.' I said, 'That being the case, we will go ahead.' "
About a week later this witness called the Ann Arbor bank on "long distance" and "asked for an officer of the bank who would be familiar with the *Page 206 Friedman-Westminster job." The girl who answered the phone went off the line just for a minute or two and then said: "Mr. Walz will talk to you." Racher testified on this point as follows:
"I identified myself, and then I told Mr. Walz that we were the people supplying the Friedman-Westminster job, and that I talked to Mr. Zimmerman on the job a few days previous, and that I wanted to be sure — I wanted to know that he had authority. I didn't know what Mr. Zimmerman's capacity was, and I just wanted to verify it, and he said, 'Well, Mr. Zimmerman is handling that job for the bank, and whatever he says is okay.' So that was all there was to it."
The deposition of cashier Herman F. Gross shows that the bank had other mortgages on Detroit property and that Zimmerman "used to come in fairly often twice a week."
"Q. He took care of the bank's Detroit business?
"A. Yes."
At the time of delivery, Walz was president of the bank. Otto Ernst accompanied by Leitch of Grace Harbor Lumber Company and Cherry of Acme Clay Products called at the bank and were referred by the cashier to president Walz. They had a conversation about the situation and its possible solution; among other matters an option to the material men was discussed.
"Q. Do you recall anything being said about Mr. Zimmerman?
"A. He did say this, that Zimmerman was his righthand man, and reported to him on the progress of the building from time to time, being in Detroit practically every day; made his rounds on various jobs that they had — they were interested in, and he *Page 207 got his report from Zimmerman on the progress of the building."
Shortly before Friedman's option was about to expire, Ernst had another talk with Walz:
"Q. And what if anything was said on this occasion?
"A. 'Well, the thing is changed,' he said, — that there had been a new option made up again — we said, 'How come? You promised us that we — that we should have the consideration inasmuch as we were tied up with a lot of money there.' And, he said that his attorney advised me to the contrary, and consequently made up a new option."
Appellant claims, in the main, lack of proof of the express contract or the authority of Zimmerman and that the court erred in various instructions to the jury.
The authorities are well briefed, but the facts are persistent that the bank found itself, in the words of Zimmerman, with a mess on its hands; that the material men who had begun deliveries to the Friedmans soon became aware of the possibility of non-payment and were unwilling to go further without being able to look to responsible parties. They took the usual businesslike precautions and while we do not invade the proper province of juries, we would have arrived at the same conclusion as to the bank's liability.
Our observation and holding in Hunt v. Stromberg MotorDevices Co., 215 Mich. 483, is controlling:
"In this age of corporations, when so great a proportion of the country's business is carried on by them, * * * yet greater difficulties than formerly confront the outsider when called upon at his peril *Page 208 to verify the authority of their agents and officers in a particular transaction according to the narrow rules of record evidence once more generally recognized, and yet often though not always applicable. The circumstances of particular cases frequently present controlling facts of force materially modifying them. * * *
"Corporate powers and purposes can only be expressed and performed through natural persons acting as its officers and agents."
While various statutes state the powers and duties of bank officers, nevertheless defendant is a corporation and the general rules of corporate conduct are applicable.
The bank was acting through Walz and Zimmerman, whose authority is unquestioned by any rebuttal testimony. There is ample testimony to support the verdict. We find no prejudicial error in the record and do not see any necessity for a lengthy discussion of the many authorities cited and quoted by counsel. They need not be distinguished as the facts speak for themselves.
The judgment should be affirmed, with costs.
NORTH, C.J., and BUTZEL, J., concurred with BUSHNELL, J.