Sample Bench Memo
I R G I N I A :
the General District Court of Forsythe County
This matter came on for trial on October 10, 2001 in a claim by
Plaintiff for monies allegedly owed by Defendant pursuant to a license.
Defendant presents this memorandum in support of its evidence adduced at
This matter came on for trial on October 10, 2001 in a claim by Plaintiff for monies allegedly owed by Defendant pursuant to a license. Defendant presents this memorandum in support of its evidence adduced at trial.
A Presumption Favors Receipt of a Letter Properly Mailed.
1. A Presumption Favors Receipt of a Letter Properly Mailed.
All authorities hold that mailing a letter, properly addressed and stamped, raises a presumption of its receipt by the addressee. Hartford Fire Ins. v. Mut. Sav., Etc., Co., 193 Va. 269, 273, 68 S.E.2d 541, ___ (1952). 31 A.L.R.2d 1191. This Court should presume Plaintiff received the letter Defendant sent on August 18, 1998 canceling the license agreement.
2. An Agent Acting with Apparent Authority Binds His Principal.
John Doe (“Doe”) signed the license agreement on behalf of his principal, Plaintiff. He indicated near his signature that he was vice-president for sales. The license agreement was a “sale” falling within Doe’s apparent authority as agent for Plaintiff. For all that Defendant knew, Doe was the company.
The closest analogy in case law for examining Doe’s role as agent of Plaintiff is the relationship between an insurance agent and his principal.
(Second) of Agency § 292 (1957) states in pertinent part, "[t]he other
party to a contract made by an agent, . . . acting within his . . . apparent
authority . . . is liable to the principal, as if he had contracted directly
with the principal." Restatement (Second) of Agency § 8 comment d (1957)
points out that when an agent, acting within the scope of his apparent agency,
enters into a contract with a third person "the principal becomes
immediately a contracting party, with both rights and liabilities to
the third person." (Emphasis added.)
Variable Life Ins. v. Wood, 234
Va. 535, 539, 362 S.E.2d 741, ___ (1987)
In the Wood case cited above, a life insurance contract required that notice of cancellation be mailed to the insurance company in order to be effective. The insurance agent told the insured that notice would be effective if it were mailed directly to him. The insured died in a plane crash within a day or two of mailing her cancellation notice to her agent. Wood presented to the Virginia Supreme Court the question of whether the oral representation of an agent -- in clear contravention of contract language – was binding on the agent’s principal. The Court held that an oral modification by an agent is in fact binding on a principal even though it violated contract terms.
That same view was reiterated ten years later in the case of Marshall Erdman & Assoc. v. Loehr, 24 Va. App. 670, 485 S.E.2d 145, (1997). There, the Virginia Supreme Court again held:
act is within the apparent scope of an agent's authority if, in view of the
character of his actual and known duties, an ordinarily prudent person, having
a reasonable knowledge of the usages of the business in which the agent is
engaged, would be justified in believing that he is authorized to perform the
act in question." Wright v. Shortbridge, 194 Va. 346, 353, 73
S.E.2d 360, 364-65 (1952) (citations omitted).
Va. App. 670, 678 (1997).
For these reasons, the Court should find in favor of Defendant.
Olivier Denier Long, Esq., Virginia State Bar No. 27094
1420 Spring Hill Road, Suite 210
McLean VA 22102-3026
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