Truslow v. Bridge
| Decision Date | 26 March 1907 |
| Citation | 61 W.Va. 628 |
| Parties | Truslow v. Parkersburg Bridge and Terminal Railroad Co. |
| Court | West Virginia Supreme Court |
There can be no decree, except on a case made by the pleadings, and a party cannot avail himself of a matter of complaint or defense not set up by proper pleading, (p. 630.)
If an agent acts in a dual capacity, without the knowledge or consent of the parties for whom he is acting, his acts are voidable at the election of either of the parties upon discovery of such double agency, without proof that the parly disaffirming the acts has been injured thereby, (p. 630.)
A principal may ratify the voidable acts of his agent, and such ratification may be express or implied. And where, after a discovery of such acts, the principal, with full knowledge of the facts, acts in such manner as to unmistakably indicate that he intends to avail himself of the benefits of the contract made by the agent, he will be deemed to have ratified such acts in their entirety, (p. 632.)
Where an agent employed to secure options on certain lands, for his services is to receive a stipulated compensation per day, and in the performance of his services takes from the optioner a commission contract by which it is agreed that in case the agent succeeds in selling the land under the option he is to receive from the pptionor a certain sum, he thereby becomes the agent of both parties, and the optional contract is voidable at the election of either of the parties thereto, (p. 632.)
Appeal from Circuit Court, Wood County.
Bill by Mary J. Truslovv and others against the Parkersburg Bridge & Terminal Railroad Company and others. Decree for plaintiffs, and defendant railroad company appeals.
Affirmed.
Reese Blizzard, for-appellant.
W. II. Wolfe, Jr., and Wm. Beard, for appellees.
Sander.s, President:
The Parkersburg Bridge and Terminal Railroad Company employed J. M. Mitchell to procure for it options on certain property on the south side of the Little Kanawha River from Parkersburg. For this service he was to receive a fixed compensation per day. Acting in this capacity, he took from the plaintiffs, Emma J. and W. F. Truslow, on the 21st day.of November, 1902, an option on certain property owned by them, the title to Which was in the female plaintiff, for which property the sum of sixteen hundred dollars was to be paid. The option was taken in the name of J. A. Shrewsbury, assigned to Mitchell by Shrewsbury, and by Mitchell assigned to the Railroad Company. By its terms the option was to be assigned within ninety days, and on the 31st day of January, 1903, the company notified the plaintiffs in writing that it would accept the option and upon execution to it of deed would pay the price agreed to be paid.
In the latter part of February or the first of March, 1903, the company discovered that the agent, Mitchell, had been taking commission contracts on all the property optioned by him that is, he agreed with the land owners that in case a sale was effected by him through the option taken he was to receive a certain additional sum in this particular instance the sum being seventy-five dollars. Upon discovery of this fact, the relations between Mitchell and the company were severed, the company taking from Mitchell an assignment of all commission contracts taken by him. Negotiations were entered into with a view of obtaining from the plaintiffs a contract more favorable to the company, and it refusing to comply with the terms of the option, this* suit was, on the 16th day of January, 1904, instituted for the purpose of compelling a specific performance of the agreement. Upon a hearing, the court decreed that the contract should be specifically enforced, and from this decree the Railroad Company has appealed.
The option in question was acknowledged by the appellees before J. M. Mitchell, and this, it is claimed, renders the option void, inasmuch as Mitchell having an interest in the option, was disqualified from taking the acknowledgment. Whether or not Mitchell's interest was such as would disqualify him from taking the acknowledgment we do not decide. An examination of the pleadings shows that nowhere is the incompetency of Mitchell to act in this capacity set up as an avoidance of the optional contract, but this matter in avoidance is first relied upon in argument. In order that the defendant could avail itself of this defense, it is necessary that the facts constituting it should be set up by proper pleadings, and this is not done. It is the well settled rule of equity practice that there can be no decree without proper pleadings to suxjport it. There is no allegation in the pleadings to show that the J. M. Mitchell who took the option is the same person who took the commission contract. In order for the appellant to avail itself of this defense, it would be as necessary to allege that the person who took the option was the same as the one who took the commission contract as it would be to prove that fact. Welftey v. Shenandoah I, Z., M. & M. Co., 83 V a. 768. "A decree must have for its basis a proper pleading giving adequate facts to support it." Turner v. Stewart, 51 W.Va. 493; Lang v. Smith, 37 W. Va. 725; Evans v. Kelley, 49 W. Va. 181.
There is no contention but that at the time the option was taken by Mitchell he took the commission contract; it is equally as well settled that after discovery on the part of the company that the commission contract had been taken, it took an assignment of them from Mitchell, and that it retained possession of the option and commission contract taken from the plaintiffs until the institution of this suit. It is controverted that the Truslows had knowledge that Mitchell was acting in a dual capacity, and it is also a controverted fact as to whether or not the appellant had knowl- edge at the time Mitchell was taking the options that he was also taking the commission contracts. Mitchell says that the officers of the company knew it, and this is denied on their part. It is also settled that there was never any formal notice of revocation served upon the appellees after the discovery by the appellant of the alleged bad faith of its agent. One F. C. Sands testified that he was employed by the company, upon discovery by it that Mitchell was taking the additional contracts, to go to the appellees and endeavor to purchase the...
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