(dissenting).
I must dissent from the majority’s disposition of this case, for I believe the trial *603court correctly directed a verdict for the plaintiffs.
The test on appeal for determining the propriety of a directed verdict has been formulated by this court as follows:
“In determining this question we must, of course, construe the evidence most favorably for [the party against whom the verdict was directed] * * *, and if the evidence is of such a character that reasonable minds may differ as to the inferences to be drawn from the facts the case must be submitted to the jury.” Swetnam v. F. W. Woolworth Co., 83 Ariz. 189, 191-192, 318 P.2d 364, 366 (1957). (There are a myriad of cases that follow this rule.)
As I see it, the evidence in this case can only support one reasonable conclusion— that, as a matter of law, Mr. Reeves ratified the collective bargaining agreement.
Perhaps the most crucial factor to be considered in determining whether the agreement was ratified by Mr. Reeves is his conduct in allowing the unions to believe that he was operating his plant under the collective bargaining agreement. Pertinent to this discussion is the following illuminating testimony in Mr. Reeves’ deposition.
“Question: With respect to your employment of the members of the Operating Engineers Union and the Teamsters Union, have you employed them pursuant to the standards of wages, hours, and working conditions set forth in that agreement, have you complied with the requirements of that agreement with respect—
“Answer: All except—
“Question: And I assume with the exception for the Health & Welfare payments ?
“Answer: Yes.
“Question: Otherwise you have employed these members of the Operating Engineers Union and the Teamsters Union pursuant to the terms and conditions of that collective bargaining agreement other than the Health and Welfare Fund payments?
“Answer: Yes.”
* * * * *
“Question: Now, as a matter of fact, Mr. Reeves, in terms of relationship that you had with the unions and yourself, it was understood between you and the Operating Engineers Union and the Teamsters that you were operating pursuant to a union agreement, is that not correct ?”
sjc ^ ‡ ‡ ‡
“Answer: I agreed upon everything except the insurance." (Emphasis added.)
This testimony clearly indicates that Mr. Reeves himself believed he had ratified the collective bargaining agreement. Whether he did not desire to be bound by the welfare fund provision is immaterial, for once he accepts the benefits of the contract he cannot refuse to live up to the contractual obligations.
“ * * * if he * * * receives or retains benefits of, an unauthorized transaction with knowledge of the facts, such conduct constitutes an affirmance of the entire transaction irrespective of a manifestation of intent not to be bound by the liability it imposes, if the other party elects to treat it as such.” Restatement of the Law, Agency 2d § 96.
More significant is the fact that Mr. Reeves permitted his company name to be used in the Association’s “United Front” drive which further misled the unions. Since his company was the only sand and rock company allowed to operate during a strike in 1955 because of a contract with the unions, he must have been well aware that without a contract his company’s operations would have been ground to a halt by a union strike.
The record clearly shows that Reeves never deviated from the collective bargaining agreement except with respect to payments into the welfare fund.
*604The' majority emphasizes that all of Reeves’ employees were either friends or relatives, and that they would have worked regardless of the existence of any agreement. This assumption, however, is clearly unwarranted by the evidence. The record shows that for years prior to 1959 a collective bargaining agreement was in force between the unions and Reeves Sand & Rock Company. If the employees were on such good.terms, with Mr. Reeves why did they need a contract between 1955 and 1959? Moreover, the fact that Reeves let the Association use his company name in their “United Front” drive indicates that he was contemplating the execution of a new collective bargaining agreement.
One additional fact should be noted. Mr. Reeves sent one of his employees to an Association' meeting, at which time the collective bargaining agreement including the welfare fund provision was unanimously ratified. To give credence to the statement that the employee was only a guest and not allowed to vote is simply absurd. The record is clear that Reeves knew this meeting was called specifically for the ratification of collective bargaining agreements by nonmember companies. What other reasonable excuse could exist for sending his agent to the meeting?
As I see it, Reeves expected to reap the benefits of the contract by accepting the work of his employees together with the benefits and advantages of not having a strike, but he refused to comply with his obligation under the contract by failing to make the required payments to the welfare fund.
In Brandt v. Beebe, 332 S.W.2d 463 (Mo.App.1959), a similar case was before the Missouri court. In that case the employer refused to pay vacation benefits, but accepted the work of his employees. The court stated:
“The employees involved herein performed services under the written contract, which services defendant accepted. And the settled rule is ‘that, although a written contract be not signed' by one or both of the parties, the acceptance by one of the performance by the other .will give validity to the instrument and impose on the acceptor the corresponding obligation provided therein.’ ” 332 S.W.2d at 466. (Citations omitted.)
The majority gives great weight to Mrs. Reeves’ testimony to the effect that she never believed the company was bound by any contract. However, her testimony consists of self-serving statements that are contradictory of her husband’s testimony. Certainly no credence can be given to statements of this sort during the time that her husband had the complete management and control of the business.
The majority also stresses that Mr. Reeves never became a member of the Arizona Aggregate Association. Yet I fail to see what relevance this has in determining the existence of ratification, for the collective bargaining agreement itself did not require that Reeves join the Association.
For my part, the evidence establishes as a matter of law that Mr. Reeves ratified the collective bargaining agreement.
I would affirm the judgment of the trial court.