95 Va. 560 | Va. | 1898
delivered the opinion of the court.
If the plea had stopped with the averment that the plaintiff’s agent represented that plaintiff had “actually secured the locating and building” of certain mills, it is not clear that it would not have been obnoxious to the objection that it stated an opinion, and not an existing fact, as it is obvious that it was not the purpose of the pleader to allege the existence'of the mills, but.
The jury heard the evidence and brought in a verdict for the plaintiff upon which a judgment was rendered, and the defendant thereupon obtained a writ of error, and, in this court, assigns as grounds for a reversal of the judgment certain rulings of the Circuit Court.
There was no exception taken to the plea upon which the trial took, place, and it would not have been discussed but for the consideration that if the plea presented no defence to the action, then the judgment for the plaintiff must be sustained though error may appear in the progress of the trial upon that plea. Miller v. Fletcher, 27 Gratt. 403.
Having come to the conclusion that the plea states a defence, we must examine into the allegations of error. The principal contention is that Henry Cook, who made the representation upon which the contract was entered into, was not the agent of the plaintiff. This is true, but as the result of that negotiation, and the contract entered into upon the faith of these representations, ■if the plea be true, the plaintiff received the sum, of ,$.400.rin cash, and by bringing this suit has elected to accept and abide by the contract made for it by one having no authority to act, and by whose acts and representations it was in no respect bound until it consented to enjoy the fruits of his services; but having done so, it cannot now be heard to repudiate his agency. Crump v. U. S. Min. Co., 7 Gratt. 369; Story on Agency, sec. 239, et sequitur, and 249; Harvey v. Steptoe, 17 Gratt. 303; N. Y. Life Ins. Co. v. Taliaferro, ante.
The instructions asked for by the defendant correctly state
We are of opinion that the judgment should be reversed.
Reversed.