Buckwheat v. St. Croix Lumber Co.

75 Wis. 194 | Wis. | 1889

Cassoday, J.

The verdict of the jury resolved all facts in issue in favor of the plaintiff. Accordingly the learned counsel for the defendant concedes that there can be no reversal unless it appears from the undisputed evidence that the marshal with the process and the defendant’s attorney were never in such possession, nor assumed such control over the boat, as to authorize any judgment against the defendant. In support of such contention counsel rely mainly upon Libby v. Murray, 51 Wis. 371. That was an action of replevin against an officer alleged to have taken the property upon an attachment against the property of the plaintiff’s husband; and it was in effect held that the mere reading of the writ to the plaintiff by the officer, and telling her that he attached the property, and then going into the room, where it was and looking at it, but not removing it, nor taking it into his possession or control, nor serving the writ on the husband — the defendant in the.attachment, nor making return thereof, would not justify re-plevin against the officer in favor of the wife. The simple question there was whether the owrier of property, in possession thereof, could maintain replevin from such officer not in possession, merely because he had done the several things mentioned.

This is not an action of replevin, and the case is otherwise distinguishable. Trespass will lie where replevin will not. Grace v. Mitchell, 31 Wis. 533. The theory upon which this action was maintained in-the trial court is to the effect that the defendant, through its attorney and the United States marshal, informed the plaintiff that the marshal was in the possession and control of the boat under and by virtue of the writ mentioned, and.warned the plaintiff not to interfere with it, and refused to surrender possession on demand; that the plaintiff, relying upon such claim, statements, and conduct, refrained from caring for the boat; that in consequence thereof the boat became injured, to the plaintiff’s damage; and that, by reason of the acts stated, the ..defendant was estopped from claiming that such levy was not made and such possession and control not taken. The evidence of conversion was sufficient to carry the case to the jury. Neilau v. Hanny, 2 Car. & K. 710. Assuming the facts to have been as they were manifestly found by the jury, and it is very apparent that what was said and done by the defendant’s attorney and the marshal were such as to have naturally induced the plaintiff to act differently in respect to the care and possession of the boat than he otherwise would have done, and that he was grea-tly prejudiced thereby. This clearly constituted an estoppel. Vilas v. Mason, 25 Wis. 310; Zielke v. Morgan, 50 Wis. 568; Warder v. Baldwin, 51 Wis. 450; Warder v. Balter, 54 Wis. 49; and cases cited in the opinions therein.

By the Court.— The judgment of the circuit court is affirmed.