dissenting.
As stated in the majority opinion, this is the second review of a judgment in this case. The first involved the legal propriety of the trial court’s action in sustaining a demurrer to the plaintiff’s petition. In an extended and carefully considered opinion by Mr. Justice Browning, the court reversed that judgment and remanded the case “for a *239trial on its merits and in accordance with the views herein expressed.” Kiser v. Amalgamated Clothing Workers of America, 169 Va. 574, 194 S. E. 727, 114 A. L. R. 1291.
That opinion, therefore, in so far as the facts alleged in the petition were concerned, thereby became the law of this case. The decision was definitely to the effect that the facts averred constituted a cause of action against the defendant, and that if those facts were proved by competent evidence on the trial a recovery of damages against the latter would be warranted. Moreover, on the basis of the allegations of the petition the court expressly found and stated in the opinion then rendered that
“The contract, or agreement, in question promises the plaintiff that if she joins defendant’s union and loses her position because of such action the union will continue her salary until she is again employed.”
Asked on cross-examination how she and her counsel and the other women figured the amount of damages claimed, the plaintiff answered:
“* * * we just figured we had been damaged, greatly damaged when we were thrown out and lost our money, when I spent it well for my four children and family.”
° Upon a return of the case to the court below, and a trial there upon the merits, a contract such as the one above stated by this court was established by what seems to me to be the overwhelming weight of the evidence. While at the trial there was an earnest effort in behalf of the defendant to show that the promise was conditioned upon the National Industrial Recovery Act, 48 Stat. 195, being upheld, the evidence designed to establish that qualification is, as I read it, very far from being convincing. It is altogether likely that Miss Christenson and Miss Corlett, the two organizers sent to Staunton to set up a local union, had “The N. R. A.” and its potent machinery very definitely in mind, and were counting on them as efficient aids in fulfilling the promises made to the employees of Grief Brothers, but the evidence as a whole is to my mind not at all persuasive that anything whatever was said by the organ*240izers at the time that would indicate the promise bore any relationship to, or was dependent for its carrying out upon, the Federal Act.
The business of the organizers was to present the union, as such, and the advantages of membership in it, in their most attractive light, and to convince those who were being solicited to join that the union, in and of itself, was fully competent to protect and to advance the interests of its members. In that connection the financial strength of the head organization appears from the evidence to have been the feature principally stressed, an abundance of funds in banks in New York and Chicago being significantly alluded to, and a witness quoting one of the organizers as saying: “Don’t worry about that. In case you lose your job the union will pay you as much as you are making right now; we have lots of money.” And the evidence leaves no room for doubt respecting the zeal, persuasive powers or persistence of the soliciting organizers. There is, however, not the slightest indication that they were actuated by any discreditable motive or that they were acting otherwise than in the utmost good faith and in the firm belief that the union would make good on the promise.
Much to be regretted, though, is the fact that there is evidence tending to show that subsequently, and after the attempt to organize a local union had failed, a very reprehensible method was resorted to. One employee who had lost her position at the factory but who for some undisclosed reason did not bring suit, testified that she was asked to sign a paper exonerating the defendant union, and that she was offered $25 to do so but declined “because it was not the truth in that.” The paper was introduced in evidence and contains this statement:
“We have never heard Miss Christenson or Mrs. Bishop or any one else say that the Amalgamated Clothing Workers of America will pay to those who join the union the wages the workers earned should they be discharged.”
The court, in its present opinion, denies the plaintiff— and in consequence also the fourteen other formér employees *241of Grief Bros. — any relief, and this on the ground that the constitution of the defendant union contains no provision authorizing the organizers of a local union to make a promise to or a contract with the women such as the evidence shows they did make when the organizers urged them to join.
Viewing the point against the background of what transpired when the case was here before, it takes on the appearance of an afterthought on the part of defendant’s counsel. That is to say, counsel had urged a number of grounds in support of the demurrer to the petition: (1) That the contract alleged was too indefinite in its terms to be enforceable, (2) that the plaintiff failed to allege compliance on her part with the constitution and by-laws of the union — evidently meaning as regards the payment of dues and other steps necessary to qualify as a member, (3) that the contract lacked mutuality of obligation; and some seven other grounds. But the ground now urged by counsel, and sustained in the majority opinion, was not even mentioned. That defense made its appearance for the first time in the answer filed by the defendant after the return of the case to the trial court. That the point was not made in the argument on the demurrer, and that the defense then predicated upon the constitution related solely to the provisions of that instrument touching the steps necessary in order to qualify and to continue in good standing as a member, and not to the authority of organizers to make agreements with those solicited, is, I think, clear from the following passage of the former opinion:
“The defendant alleges that the plaintiff fails to aver compliance on her part with the constitution and by-laws of the defendant and the performance of a condition precedent.
“It is not incumbent upon the plaintiff to prove her position in relation to this allegation. Rather, it is defensive matter, to be urged and established by the defendant.”
Furthermore, there is certainly a close analogy in this respect between the constitution of a voluntary associa*242tion, like the defendant, and the charter of an ordinary business corporation. Regarding the latter the following is laid down in 7 Ruling Case Law, p. 589:
“It may be stated as a general rule that every corporation has power to make all contracts that are necessary and usual in the course of the business it transacts, as means to enable it to effect such object, unless expressly prohibited by law or the provisions of its charter.”
And, referring to the doctrine of ultra vires, the same authority, at page 676 of the volume above quoted, says:
“* * * in the modern cases especially, the rule has been frequently announced that the plea of ultra vires should not be allowed to prevail, whether interposed for or against a corporation, when it will not advance justice, but, on the contrary, will accomplish a legal wrong.”
So much by way of background. I come now to consider, very briefly, the proposition on its merits.
It is said in the majority opinion that a careful search of the constitution of the defendant union disclosed no provision expressly authorizing such a contract. A diligent search for any express provision in that instrument for sending out from headquarters representatives to organize local unions would be equally fruitless, or even a provision for paying compensation to any member of the large staff— except the General President and the General Secretary-Treasurer, whose salaries are prescribed — or for contracting for the rent of offices, or for office equipment, etc., and yet hardly will it be questioned that the defendant union has such authority under its constitution. The latter does, however, provide expressly for the organization of local unions throughout the country and prescribes the qualifications necessary for membership.
Although the organization of local unions appears to constitute the chief purpose of the parent body, Miss Chris-tenson testifying as to her own work that “the main job is to organize and try to get people to join the union,” nothing very specific is said in the constitution as to the scope of the authority of those who are sent out to engage *243in such work. There are, however, certain broad provisions bearing upon the matter; such as in section 6 of Article V, where it is provided that the General President shall, among other things, “perform necessary organizing and other work usual to the office of General President,” and in section 12, of the same article, where the language is, “The General Executive Board shall have general supervision over the affairs of the Amalgamated Clothing Workers of America.” But, according to Miss Christenson, the organizers of local unions, at least those long in service, are allowed considerable discretion. On cross-examination she testified:
“Q. Give me, as exactly as you can, in full detail, just what your instructions were.
“A. It is not very long. I have been an organizer for many years. I do not need to have a long set of instructions. A place is unorganized; I am told to go and see what is doing there and see what the chances of organizing are. I am not accustomed to having instructions.”
Touching both the question of authority of the organizers and the question of ratification of the particular contract here involved, the following passage in the former opinion of the court in this case seems to me quite pertinent:
“We again note with accentuation the fact that for nine months after the loss of her position the plaintiff was paid a certain sum per week for a period of time and a certain other sum for the residue of the time to January 18, 1936. These payments were in part performance by the defendant of its obligation. Full performance would have required the payment of $18 per week. As far as the act extended it is informative of the construction placed upon the contract by the parties to it.”
Instruction J, given by the trial court, reads as follows:
“The court instructs the jury that the constitution of the defendant union can only be considered in this case for the purpose of determining whether the defendant’s organizer, Miss Christenson, actually made with the plaintiff the agreement upon which the plaintiff is suing in this case; *244but the court further tells the jury that, even though they may believe that Miss Christenson was not authorized by the constitution of the defendant union to make such agreement, yet if she did m fact make it, the defendant is bound by it.”
While it is not altogether clear upon just what theory this instruction was given, yet doubtless it was based upon the “apparent authority” doctrine, in the law of agency. This latter is stated thus in 21 Ruling Case Law, p. 854, par. 34:
“The liability of the principal is not limited to such acts of the agent as are expressly authorized or necessarily implied from express authority. All such acts of the agent as are within the apparent scope of the authority conferred on him are also binding* upon the principal, apparent authority being that which, though not actually granted, the principal knowingly permits the agent to exercise, or which he holds him out as possessing. By implication the authority of the agent is enlarged when the principal permits him to do acts not expressly authorized, or which are recognized as valid after they are done.”
There being no provisions of the constitution indicating in any other than quite an indefinite way the scope of the authority of those sent out to organize local unions, it would seem the general rules applicable to the relationship of principal and agent govern, rather than those applicable to representatives of bodies operating under a written constitution. The constitution itself in the instant case is silent on this subject save for a few broad provisions outliving the general purpose of the organization, and creating two important executive officers whose powers evidently were meant to be large but the definition of which powers was only in broad and general terms. Hence resort necessarily must be had in considerable measure to some source other than the constitution when a situation is presented requiring the judicial determination of the agent’s authority. In all probability it was upon this view of the matter that the trial court gave instruction J.
*245Certainly the defendant is in no position to claim immunity from responsibility for the acts and engagements of its agents merely because its constitution does not in haec verba, or even in general terms, authorize its organizers of local unions to make agreements of the kind here entered into. Unless this be true, then all that is needed to escape liability for the acts of its agents is for an association to adopt a skeleton form of phrasing in the drafting of its constitution.
But even, in the present case, were legal warrant for the instruction open to question, it would seem improbable that the giving of it was prejudicial to the substantial rights of the defendant. Instructions 15, 25, 28, 29 and 30 are distinctly favorable to the defendant’s theory of the case, and were well calculated to disabuse the minds of the jurors of any harmfully erroneous impression made by instruction J. By this, of course, I do not mean to imply that that instruction was in any degree erroneous, but simply to call attention to the well-established rule that all instructions are to be read togeher.
In the former opinion this court cited Pennsylvania Co. v. Dolan, 6 Ind. App. 109, 32 N. E. 802, 51 Am. Rep. 289, which involved a contract similar to the one in question here, and quoted at length from the opinion in that case. I repeat one singularly apposite sentence of the quotation:
“This is, in our estimation, a flagrant breach of contract, and courts exist to a poor purpose if they can give no redress for such a wrong.”
This voluntary unincorporated association was organized for the purpose of bringing into its union open shops throughout the country and to eliminate or to lessen what it deemed to be unfair competition. Should it have failed in. this, it would have died at home. In accordance with this major purpose, agents were sent abroad. That it was intended that they should hold out inducements to those open shop workers to change their allegiance cannot be questioned. Could they have been expected to say: “Leave the work you have and come with us; maybe you will get *246another job and maybe not.” They did come to Staunton, and they did do just what it was intended that they should do. In substance and effect they said to the plaintiff: “If you will leave the place you have and join our association we will see that you do not suffer.” This was the normal use of power necessarily applied, and this the association itself recognized, for time after time it made payments on account of the contract overwhelmingly established.
I think the judgment is in full accord with the former opinion and should have been affirmed.
Browning, J., concurs in this dissent.