McFeely v. Little

Opinion by

Mr. Justice Green:

The supplemental affidavit does contain the averment, near its conclusion, that both the Kirks were the agents of the owners of the land in effecting its sale to the defendant. The original affidavit alleges that G. W. Kirk represented to defendant that he and his brother, S. S. Kirk, together with others* were agents, for the owners for the sale of the land at $5,000, and that the defendant at the solicitation of G. W. Kirk visited the land twice with G. W. Kirk and once with S. S. Kirk; that is, that, the visit with S. S. Kirk was by the solicitation of G. W. Kirk.

Then the supplemental affidavit avers that the subsequent acts of G. W. Kirk and the statements made by S. S. Kirk in the presence of the plaintiff show that as a fact S. S. Kirk was such, agent and was so recognized by the plaintiff, and proceeds to describe those acts and statements. Substantially they are that defendant by the request of S. S. Kirk went to. Virginia to meet, him and the plaintiff and consummate the sale as negotiated by both the Kirks; that he, the defendant, was there introduced by S. S. Kirk to the plaintiff, the terms of sale were stated, the action of “said Kirk” (which here means S. S. Kirk) in negotiating the sale for the owners was approved and ratified, the terms, accepted and the contract consummated.

Next follows an averment that said S. S. Kirk first brought defendant into personal contact with the plaintiff, “who acquiesced in all that said Kirk and his brother had done in effecting' said sale.”

This averment of acquiescence is rather general, and we would, not be at liberty to infer from it that the false representations- and acts of deceit alleged in the original affidavit to have been. made and doné by G. W. Kirk were repeated to, or in the presence of, the plaintiff, and approved by him. But that is probably not necessary for the purposes of an affidavit of defense. If the person who made the sale as agent was the agent of the-vendor, and in fact in making the sale did make the false representations in question and commit the acts of deceit mentioned,, the principal, as we understand the decisions, would be chargeable with the consequences. The point here however is whether' the connection of agent and principal as between G. W. Kirk and. the plaintiff is sufficiently averred. It must be confessed that, such averment is somewhat meager and not as distinct as it might be. But, taking the two affidavits together, we think they comprise such an allegation, in substance; and, with some hesitation, we think the' defendant is entitled to be heard by a jury upon the .facts set up in defense. We decide nothing more than, this.

Judgment reversed and procedendo awarded.