Kenny Construction Company, Inc. v. Herschel H. Allen, T/a J. E. Greiner Company
101 U.S. App. D.C. 334 · 1957 U.S. App. LEXIS 3851 · 248 F.2d 656
October 17, 1957 · Docket 13791_1
Headnotes
Generated summaries- Headnote 1
The parties’ appointment clause contains no limiting or negative language, and the court will not look to the parties’ motives because the wording is unambiguous.
- Headnote 2
Article 8 of the contract designates the Clerk of the Municipal Court as the true and lawful attorney for the partners to receive all notices and processes relating to the contract.
- Headnote 3
Because the partners appointed the Clerk as their attorney for service, the service effected on the Clerk satisfies the statutory requirement that service on an attorney of record equals service on the client.
- Headnote 4
The district court’s order vacating service on the Clerk was erroneous because the contract’s language gave the Clerk authority to receive service in the present action; the order is therefore vacated and the case remanded.
- Headnote 5
The court declined to examine the parties’ motives or surrounding circumstances because the appointment clause was clear and unqualified.
- Headnote 6
The agreement’s Article 8 contained no limiting or negative language, and the court held that, absent an express limitation, the clause must be enforced as written.
- Headnote 7
Article 8 of the contract irrevocably designated the Clerk of the Municipal Court for the District of Columbia as the attorney for each partner to receive all notices and processes relating to the contract.
- Headnote 8
The court found that service on the Clerk of the Municipal Court complied with the contractual appointment and therefore constituted valid service on the consulting‑engineer partners.
- Headnote 9
The Greenway suit was a third‑party action relating to the contract; because the clause’s language was unqualified, the clerk’s acceptance of service was valid.
- Headnote 10
The opinion rejected the parties’ attempt to infer a limitation from surrounding clauses, noting that such inference is unavailable where the clause’s terms are clear.
- Headnote 11
The district court’s order invalidating service on the clerk was vacated because the appointment language satisfied the plain‑meaning and agency requirements.
Opinion
The District of Columbia, a municipal corporation, undertook the construction of certain public works. It engaged as consulting engineers Allen, Jenkins, Alíen, et al., a partnership of six members trading as J. E. Greiner Company and resident in Baltimore. Kenny Construction Company, Inc., was awarded the contract of construction. Next door to the contemplated site was Greenway, Inc., a rental housing development. As the excavation proceeded, the surrounding earth settled, and Green-way claimed it was damaged. It sued Kenny and the District of Columbia. Kenny sought to implead Allen, Jenkins, Allen, et al., the designers of the plans for the work. Its problem was to get effective service on the Baltimore partnership or the partners. Among other efforts to that end it served process on the Clerk of the Municipal Court for the District of Columbia as agent of the partners. The contract between Allen, Jenkins, Allen, et al., and the District of Columbia contained a clause which read:
“Article 8. Appointment of Attorney :
“a.“a. Each of the partners constituting Consultant does hereby irrevocably designate and appoint the Clerk of the Municipal Court for the District of Columbia and his successors in office as the true and lawful attorney for each and all of the said partners for the purpose of receiving service of all notices and processes issued by any court in the District of Columbia, as well as service of all pleadings and other papers, in relating [sic] to any action or legal proceedings arising out of or pertaining to this contract or the work required or performed hereunder.”
This language made the Clerk of the Municipal Court the agent of each of the partners in Allen, Jenkins, Allen, et al., for service of process in “any” lawsuit “pertaining to” the work under this contract. The case at bar certainly pertained to the work under the contract. So, according to the language of the quoted clause, the service was good.
Allen, Jenkins, Allen, et al., say, however, the quoted clause was included in the contract at the instance of the District of Columbia and for the purpose of protecting the District and nobody else. But, in the first place, no limitation or negative expression appears in the contract. In the second place, nothing appears to indicate what Allen, Jenkins, Allen, et al., had in mind in providing for designation of an agent, and they, not the District, were the appointers of the agent. What the District may have had in mind is immaterial. In the third place, it would have been simple and easy for Allen, Jenkins, Allen, et al., to have said in the contract that the agent was appointed only for purposes of actions brought by the District. The two immediately preceding clauses in the contract, relating to insurance and indemnification, contained such limiting language. Counsel for the partners urge us to read Article 8 as merely implementing the preceding Articles 6 and 7 and as limited to their scope. We find no basis for doing so; on the contrary the omission of limiting language from Article 8, after its inclusion in Articles 6 and 7, seems to us noteworthy as indicating a variation in purpose. In the fourth place, we do not reach intention as a means of interpretation unless the words are unclear or both parties assert a positive intent contrary to the words and nobody else is adversely affected by the strange meaning. Neither of these conditions obtains here. In the fifth place, it is not a necessary inference that in proposing the appointment of agents by all contractors the District was motivated solely by its own corporate municipal interests. It is just as reasonable to infer that District officials had in mind the desirability of protection for all persons in the District liable to injury from the contract.
We think the service on the Clerk of the Municipal Court for the District of Columbia was good. The order of the District Court quashing that service is vacated, and the case is remanded.