Spangler v. Ashwell

• Decision Date: 12 November 1914
• Citation: 116 Va. 992,83 S.E. 930
• Parties: SPANGLER. v. ASHWELL.
• Court: Virginia Supreme Court

83 S.E. 930

116 Va. 992

SPANGLER.

v.ASHWELL.

Supreme Court of Appeals of Virginia.

Nov. 12, 1914.

Rehearing Denied Jan. 12, 1915.

1. Principal and Agent (§ 189^*)—Actions on Agents' Contracts — Sufficiency of Declaration.

A count, alleging that Z. so represented himself to plaintiff that at his request plaintiff agreed to sell the mineral rights, in a tract of land to defendant for $1,000, which Z., acting on behalf of defendant, agreed that defendant would pay, that defendant by his agent paid a part of the purchase price, whereupon plaintiff made and delivered a deed conveying such mineral rights to defendant, who accepted and recorded the deed, that defendant had claimed such rights by virtue of the deed and was claiming title to the estate by virtue thereof, that by reason of the premises there was implied by law a promise on the part of defendant to pay plaintiff, and that in legal intendment defendant, by accepting and holding the deed, promised to pay the purchase price, stated a cause of action.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 713-717; Dec. Dig. § 189.*]

2. Jury (§ 90*)—Competency—Relationship •to Party in Similar Action.

In an action on a contract made by a person claimed to have been defendant's agent and claimed to have been ratified by defendant, a brother of the plaintiff in a similar case against the same defendant, involving similar tacts, was not on that ground alone incompetent to serve as a juror.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 413-418, 422; Dec. Dig. § 90.*]

3. Principal and Agent (§ 171*)—Ratification of Acts—Acceptance of Benefits.

Z. was indebted to defendant and unable to pay the indebtedness. In the hope that he would make a profit out of options on mineral lauds, defendant placed $4,000 in the hands of a third person with instructious to give it to Z. if he regarded the loan well secured by such mineral rights, the deeds to which were to be in defendant's name and held by him as security. Defendant sent his attorney to examine the titles to the properties upon which the options had been secured and gave him $6,500 additional, which was used in taking up the options. This was less than the amount due on the several options, which amount was known to defendant. The attorney told plaintiff that defendant was good financially, and plaintiff, relying on defendant's credit, accepted Z.'s note for a part of the purchase price of mineral rights in land owned by him, knowing that Z. was insolvent. Defendant received and retained plaintiff's deed. Held, that plaintiff was entitled to recover the balance of the purchase price in an action in which he sought a recovery on the ground of ratification of the transaction by the acceptance of benefits.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. § 171.*]

4. Evidence (§ 419*)—Parol Evidence—Payment of Consideration.

A recital in a deed that the whole consideration has been paid is only prima facie evidence of the fact of payment and may be contradicted.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dec. Dig. § 419.*]

5. Frauds, Statute of (§ 133*)—Real Property and Interest Therein—Agreements to Pay Purchase Price.

Where land was conveyed without the whole consideration having been paid, by a deed which recited its payment, an action for the balance of the purchase money was not barred by the statute of frauds.

TEd. Note.—For other cases, see Frauds. Statute of, Cent. Dig. §§ 293-298; Dec. Dig. § 133.*]

Error to Circuit Court, Bedford County.

Action by William D. Ashwell against Barr Spangler. Judgment for plaintiff, and defendant brings error. Affirmed.

S. Griffin, of Roanoke, and Malcolm Griffin, of Bedford City, for plaintiff in error.

S. S. Lambeth, Jr., of Bedford City, for defendant in error.

KEITH, P. This case is a sequel to that of Spangler v. Ashwell et al., 114 Va. 325, 76 S. E. 281. The sole point considered in that case was whether it was within the jurisdiction of a court of law or a court of chancery, and in the opinion the court uses the following language:

"The whole controversy turns upon whether or not Ziegler was the agent of Spangler, and that is a matter which in all its phases can be fully heard and determined in a court of law, whether the rights of the plaintiffs in the actions at law depend upon the actual or implied agency of Ziegler, or upon a subsequent adoption and ratification of such agency by Spangler by reason of his having availed himself of the benefits of a contract entered into by an unauthorized agent. * * * All we now decide is that the whole subject is one exclusively within the jurisdiction of common-law courts."

On the first Monday in October, 1907, Ashwell filed his declaration in an action of assumpsit against Spangler, in which he claims that one Amos Ziegler, as the agent of Spangler, made a promissory note, bearing date the 16th of March, 1903, by which he promised to pay the plaintiff $600 four months after date, and avers that the note, though made and signed by Ziegler, was made and signed by him as the agent of Spangler, and thereupon the defendant became liable to pay the plaintiff $600 according to the tenor and effect of the promissory note; and notwithstanding his promises the defendant, though often requested, did not pay the note, by which neglect and refusal the plaintiff sustained damage in the sum of $1,000.

In the second count it is charged that Spangler, the defendant, acting through his duly authorized agent, Ziegler, purchased from the plaintiff certain mineral rights in land situated in Bedford county, for which mineral rights he then and there, by his agent, agreed to pay to the plaintiff the sum of $1,000 upon the execution and delivery of a deed for the mineral rights; and further avers that the defendant did by his agent, Ziegler, pay unto the plaintiff $400, a part of the purchase price, whereupon the plain-tiff, relying upon the promise of the defendant, then and there made and delivered to the defendant a deed for the mineral rights, as he had agreed to do, which deed was accepted by the defendant, by his agent, and was duly recorded in the clerk's office of Redford county; and then avers that the defendant has not paid to the plaintiff the balance due on the purchase price, to wit, the sum of $600, nor any part thereof, though often requested so to do, to the damage of the plaintiff.

At the October term, 1908, a third count was added to the declaration, in which the plaintiff avers that Ziegler so represented himself to the plaintiff, and others, with the result that on the 16th day of March, 1903, at the special instance and request of Ziegler, the plaintiff covenanted and agreed with him to sell and convey unto the defendant, Barr Spangler, for the sum of $1,000 cash, which Ziegler, acting on behalf of the defendant, then and there promised and agreed that defendant would pay to the plaintiff, certain mineral rights in the plaintiff's tract of land situated on the south side of Bedford county; and the plaintiff avers that the defendant, by his agent, did pay unto the plaintiff a certain sum, being a part of the purchase price, to wit, the sum of $400; whereupon the plaintiff did then and there make and deliver to Ziegler a deed of bargain and sale conveying said mineral rights in fee simple to Barr Spangler, the defendant, which deed was accepted by the defendant and was duly recorded in the clerk's office of Bedford county, Va., and the defendant has since the date of said sale claimed title to said mineral rights by virtue of said deed, and is now holding said estate and claiming title thereto by virtue thereof; and that by reason of the premises there is implied by law a promise on the part of the defendant, Barr Spangler, to pay to the plaintiff the amount of the purchase price; and that in legal intendment the defendant did, upon the acceptance of the deed, and does so long as he holds such land pursuant to said deed, promise to pay unto the plaintiff the purchase price in full; and that defendant has paid the sum of $400 on account of the purchase price, but the balance due thereon, to wit, the sum of $600, with interest from July 16, 1903, though often requested so to do, the defendant has refused to pay and still doth refuse, to the damage of the plaintiff $1,000.

These counts the defendant demurred to. The demurrer was overruled, and the plea of non assumpsit was filed, and upon the trial of the issues before a jury a verdict and judgment were given for the plaintiff, and the case is before us upon a writ of error.

During the progress of the trial the note made by Ziegler for $600, payable to the plaintiff, was offered in evidence, and its in troduction was objected to by the defendant; and thereupon counsel for the plaintiff stated to the court that the note was offered as evidence of the balance due and the time within which it was to be paid; that the basis of plaintiff's claim is upon the ground of ratification of the transaction by the acceptance of the benefits; and that the plaintiff was seeking to hold Barr Spangler responsible in this transaction to that extent only; and that they were not proceeding under the first count in the declaration.

The proceeding was really upon the count in the declaration filed at the October term, 1908, and, without expressing any opinion as to the other counts, we are satisfied that it presents a good cause of action.

After the jury had been impaneled and sworn and had heard a part of the evidence, counsel for the plaintiff stated to the court that he had discovered that C. H. Owen, one of the jurors, was a brother of A. T. Owen, a plaintiff in a similar case against Barr Spangler, involving similar facts, and thereupon offered that the juror be, by consent, withdrawn; whereupon counsel for the defense, without agreeing to accept the offer, objected to C. H. Owen upon the ground that he was an incompetent...