
    No. 114
    SIMONDS v. LAKE VIEW PARK CO. et
    No. 19562.
    Supreme Court
    On motion to certify.
    Dock. Jan. 12, 1926;
    4 Abs. 56.
    542. FORECLOSURE — May a court direct a verdict for defendants in a suit to foreclose a mechanics lien when it is shown that the plaintiff furnished building materials on the ground that a vice-president of a defendant corporation had no authority to contract for such materials?
    Attorneys — Benjamin F. James, for Simonds; Ora R. Wade, for Company et; both of Fostoria.
   Frank Simonds brought this action originally in the Hancock Common Pleas to foreclose a mechanics lien on property belonging to The Lake View Park Company. Stophlet and Stophlet, architects and The Union National Bank of Fostoria were parties defendant.

It appears that Simonds, a contractor, was employed by the Park Co. throug'h H. J. Summers its vice-president under written contract to construct certain buildings and pursuant thereto furnished materials and incurrer expenses amounting to $6,355.71.

The Park Co-, was promoted by Summers, who owned all the capital stock except 30 shares of $100 each. The Bank filed an answer and cross-petition which set up a bond issue of $30,000 secured by a mortgage.

The Park Co. claims that Summers had no authority to make such a contract and that it was never apprised (thereof until the last material was placed on the ground, when the president ordered the same removed. This is strenuously denied by Simonds and the defendant, Stophlett and Stophlett.

The Common Pleas entered judgment and decree in favor of Simonds and the defendant, Stophlett and Stophlett, the other parties being-in default; but later leave was granted the Bank and Park Co. to plead pursuant to the sustaining of a motion to set aside the decree. The Common Pleas thereafter directed a verdict in favor of all defendants, which judgment was affirmed by the Appeals.

Simonds, on motion to certify, contends:

1. That it was error to direct a verdict finder the scintilla rule.

2. That the court erred holding in the face of the evidence that the vice-president had no authority to make the contract.

3. The Court erred in excluding certain evidence and admitting other evidence.  