Opinion. the contrary, is stated by the same author as follows: "So, as has been seen in many cases in the preceding sections, the broker who, in disregard of his duty, conceals adverse interests or secretly enters into the service of, or himself becomes the adverse party, forfeits his right to commissions, must account for gains unlawfully acquired, and will be liable in damages for any loss caused to his principal by his perfidious conduct. Failure to disclose information necessary for his principal's protection will have the same effect." 2 Mechem on Agency (2d ed.), sec. 2477. See also Ferguson v. Gooch, 94 Va. 1, 8, 26 S. E. 397, 40 L. R. A. 234; 9 Corpus Juris, pp. 576, 577. What has been heard said with reference to instruction No. 1 and the doctrine of middlemen in real estate transactions makes it unnecessary to discuss the alleged error of the court in refusing to give defendants' instruction "A," and in giving the plaintiff's instruction No. 2. Under the eighth assignment of error, it is further claimed in the brief that the plaintiff's instruction No 3 was erroneous, but it was stated by defendants' counsel in the oral argument that the objection to this instruction was not insisted upon, being without substantial merit. [11] The ninth assignment complains of the refusal of the court to give instruction No. 4, asked for by the defendants, in its original form, and in modifying the same by adding therein the words, "and with full knowledge of all the facts." The instruction as given (except italics which we have added) was as follows: "The court instructs the jury that if you believe from the evidence the plaintiff, after executing the deed to Mr. Basho of her property, learned of the facts in reference to the transaction she is now complaining of, and, with full knowledge of all said facts, then executed along with said Basho a deed conveying her said property to the defendant, A. D. Smith, in accordance with the understanding with Mr. Basho and the defendants, and Opinion. in the said deed required the said A. D. Smith to assume certain mortgages executed by the said plaintiff, then this was a ratification of the transaction complained of, and you must find for the defendants." The evidence upon which this instruction depended was substantially as follows: The deed from Wallinger to Basho contained an error in description, and was recorded in that condition. Before the deed from Basho to Smith was recorded, this error was discovered, and to correct the mistake a new deed was executed to Smith in which Basho and Wallinger and wife all united. This deed recited that Wallinger and wife joined in it to correct the mistake. Wallinger testified that he paid no attention to the second deed further than to observe that it corrected the description, and did not notice that Smith, instead of Basho, was the grantee. Testimony for the defendants tended to show that Wallinger had learned all the facts when he and his wife executed the second deed, and the contention, as indicated by the instruction, was that the plaintiff had ratified the conduct on the part of the defendants which was complained of in the declaration. The question was one of fact, depending upon conflicting evidence, and the instruction, as modified, presented that question fully and fairly to the proper tribunal. It is said that the instruction tended to confuse and mislead the jury because it did not sufficiently specify what facts were referred to by the expression "all said facts." We think it manifest, from a mere reading of the instruction, that it could have had no such tendency. [12] It is further urged, under this assignment, that the court erred in refusing to give the defendants' instruction "B," which was as follows: "The court instructs the jury that if you believe from the evidence that when the defendants, Brandt and Smith, called on Basho to list the property with them, and that he did so, and gave them the price of $20.00, and that this was reported back by them Opinion. to the plaintiff or her husband as her agent, and thereupon the plaintiff, through her husband, made several written offers for a trade of the farm of Mr. Basho, and thereupon the defendants, Brandt and Smith, presented these written offers to Basho, who would not make the trade unless the defendant, E. F. Schmidt & Co., would guarantee to dispose of the Wallinger house, so that the transaction would net said Basho $15.00 per acre on his farm, and that the said E. F. Schmidt & Co., finding that said Wallinger property could not be sold, so as to carry out this guarantee, settled with Mr. Basho so that his farm netted him $15.00 per acre, and then had Wallinger's property deeded to A. D. Smith, and that as a result of this transaction the said defendants did not earn anything over and above the price of $15.00 per acre and the commission of 10%, and if you believe that this was caused by the Wallinger property being priced at more than it was worth, then you must find for the defendants." There was evidence on behalf of the defendants (in conIflict with that on behalf of the plaintiff) that Basho had first asked $20.00 per acre for his land; but the instruction was properly refused, because it ignored the plaintiff's theory and the rule of law applicable to the facts of the case as to the duty of the agents to deal openly and in good faith with Wallinger and to give him the opportunity to determine for himself rather than to secretly substitute their own judgment as to what he would be willing to do with full knowledge of the facts. This is especially true in view of the proof that the agents unquestionably were speculating without his knowledge on his city property, and that, as a matter of fact, they had already made a trade with it whereby they realized an apparent profit of $1,900. [13] The form of the verdict was as follows: "We, the jury in the issue joined, find for the plaintiff and fix the damage at $1,600.00 against E. F. Schmidt & Co., A. D. Opinion. Smith and Jno. M. Brandt, defendants." It is urged under the tenth assignment of error that the evidence shows that there was no such partnership as E. F. Schmidt & Co. existing between the three defendants and that the result of the verdict in this form is to establish the existence of such partnership. We do not so understand. The testimony shows that E. F. Schmidt & Co. was the firm name under which E. F. Schmidt was doing business. It further shows that E. F. Schmidt, A. D. Smith and Jno. M. Brandt were jointly and equally interested in the transaction involved in this litigation, and that whether regarded technically as partners or not, they were jointly interested in the profits and jointly liable to the plaintiff. The form of the verdict rather negatives the idea that Smith and Brandt were members of the firm. The court simply entered a judgment against the defendants without specifying them by name. This, we think, was sufficiently accurate, but in order to remove any possible doubt, this court will amend the judgment so as to make it read in terms against E. F. Schmidt, trading as E. F. Schmidt & Co., and against Jno. M. Brandt and A. B. Smith, all three as individuals. The eleventh assignment of error simply questions the action of the court in refusing a motion in arrest of judgment upon grounds which have already been disposed of adversely to the contention of the defendant. Upon the whole case, we are of opinion that there was no reversible error in any of the rulings of the trial court, and that the judgment must be affirmed. Affirmed. Syllabus. Wytheville. SHELTON V. SHELTON. June 12, 1919. 1. DIVORCE - Abandonment and Desertion Condition in Decree Against Remarriage.-A decree granting a wife a divorce a vinculo on the ground of abandonment and desertion for more than three years prior to the institution of her suit, contained the following provision: "And it appearing to the court from the record in this cause that the defendant has been several times divorced, and that this is the second divorce for the plaintiff, the court doth adjudge, order, and decree that neither of said parties shall marry again, as provided in section 2265 of the Code of Virginia (edition of 1904)." Held: That this provision was unauthorized, as section 2265, Code of 1904, only applies to a case in which the ground for granting the divorce is adultery, in which case the court may decree that the guilty party shall not marry again. The statute has no application to a case in which the cause for divorce is abandonment and desertion. 2. DIVORCE Remarriage.-No court can impose a restriction on the marriage of a divorced party without statutory grant of power. 3. DIVORCE-Final Decree-Reinstatement of Cause Without Notice. -A decree for a divorce a vinculo gave leave to either party to move the court to reinstate the suit without notice. Code of 1904, section 3293, gives the court control over proceedings in the clerk's office during the preceding vacation, including the power to set aside discontinuances and reinstate causes; and section 3233 provides that a nonresident defendant, who has not been served with process, as in the instant case, may petition for a rehearing of a decree within three years. But no statute authorizes a court to grant to parties an indefinite time within which to move the court to reinstate a suit in which a final decree has been rendered, and which has been stricken from the docket, without notice. |