after making the foregoing statement, delivered the following opinion of the court:
.The questions presented for our decision by the assignments of error will be disposed of in their order as stated below.
[1] 1. Did the court err in refusing to exclude from the jury the agreement in writing between the defendant, as agent for the owner of the property, and Wagner, as agent for the plaintiff, as the latter undertook to act and as dealt with by the defendant as an actor in the matter, as shown by the uncontroverted evidence, although the last-named agency was not stated in the writing?
This question must be answered in the negative.
The defendant, according to the testimony in its behalf, received the $500.00 sued for, certainly partly, in pursuance of the provisions of this writing. The execution of this writing was one of the circumstances which attended the payment of this money into the hands of the defendant. Clearly, therefore, the writing was properly admissible in evidence as a part of the res gestae. Its effect as evidence —how far it would be relied upon by the defendant as authorizing it to hold the $500.00 sued for—was and is another question, dependent upon the question of fact whether the writing proved to be what the evidence for the defendant tended to show the defendant considered it to be at the time it received the money of the plaintiff, namely: a contract binding upon the plaintiff and under the terms of which the defendant had the right to receive and hold possession of the said money of the plaintiff. *
[3,4] 2. Did the court err in granting the single instruction which was given the jury at the request of the defendant, which is set forth above?
This question must be answered in the affirmative.
In the argument of the assignment of error involving this instruction, it is urged that it was reversible error in *249the court to give it for the reason that it is a peremptory-instruction, and hence in violation of the statute (section 6003 of the Code) forbidding peremptory- instructions. But, as held in Small v. Va. Ry. & Power Co., 125 Va. 416, 99 S. E. 525, that statute is not to be construed as applying to cases in which the verdict of the jury depends necessarily and exclusively upon a question of law, such as the legal effect of a deed or contract. The instruction in question contained merely the construction of the written contract by the trial judge. Therefore, it was not per se in violation of the statute just mentioned.
However, the instruction under consideration, when read in the light of the statement of the trial judge before the jury in explanation thereof, and in the light of the evidence in the case, in effect, told the jury that the writing above mentioned was a contract between Wagner and the owner of the property sold, and could not be considered as a contract between the defendant, as agent of the owner, and Wagner, as agent of the plaintiff, in any aspect of the case. The uncontroverted evidence before the jury was to the effect that if the writing was a binding contract at all, it was a contract between the parties last named, and not a contract between Wagner and the owner. The instruction was, therefore, erroneous, both because it took from the jury their consideration of the evidence on this pure question of fact, and because it embodied a conclusion of fact which was directly contrary to the uncontroverted evidence.
There is only one hypothesis upon which we could decline to reverse the case because of such erroneous instruction, and that is this: If the evidence was such that, regarding the agreement in writing as having been entered into by the defendant with Wagner, as agent of the plaintiff, the jury would not have been warranted in coming to any other conclusion than that the plaintiff was bound by such writing as his contract, either because (1) he had authorized *250Wagner to make it for him, or (2) he had ratified it after it was made; and further, that the plaintiff had unjustifiably broken the contract, and as a result had forfeited the $500.00. In such case, the instruction might be considered as harmless error. But the evidence before the jury on all three of those questions of fact (not to here mention the difficulties in the way of arriving at the result just referred to upon the meagre facts pertaining thereto appearing in the evidence), was such that they were seriously controverted questions of fact, about which reasonable minds may reasonably differ in conclusions. They are, therefore, peculiarly jury questions, and they should have been left to the decision of the jury, under suitable and proper instructions, if asked for by either of the parties. Hence, the instruction under consideration cannot be considered as harmless error, and the hypothesis mentioned cannot save the case from reversal.
3. The only remaining question presented by the assignments of error is whether the court erred in refusing to give the instruction set forth above, asked for by the plaintiff.
The instruction contains obvious defects. However—
As it is not probable that an instruction in this precise form will be asked for by the plaintiff upon a new trial, we deem what we have said above in general terms, in regard to the instructions which should be given upon a new trial, sufficient to dispose of the subject for all practical purposes should the issues and the evidence on a new trial be the same as upon the one already had, and we feel that it is unnecessary for us to say anything further concerning the precise instruction last mentioned, either in approval or disapproval of it.
The verdict and judgment under review will be set aside and annulled and a new trial, de novo, will be awarded the plaintiff.
Reversed.