Chouteau v. Goddin

39 Mo. 229 | Mo. | 1866

WagneR, Judge,

delivered the opinion of the court.

The record in this case presents two questions for our consideration. First, whether the evidence in regard to the manner in which the boats were sold was admissible; and secondly, whether the declarations and actions of Goddin in pointing out the Grampus to respondents’ agent, Carlin, and thereby inducing him to go to the labor and expense of reclaiming and saving the machinery, operated as an estoppel.

The boats were sold by Capt. Wise, assistant quartermaster of the United States army, in pursuance of an advertisement which he had inserted in the St. Louis, Cincinnati and Cairo newspapers. The notice stated that he would sell the “following named steamboats” (naming them), as they lay, and that payment would be required within ten days from the time of sale.

The boats- were sold by name, but the auctioneer and others testify that at the time they were put up they were sold according to a description made by Col. Bissell, of the engineer regiment, who had made a survey of them and given a written statement of their condition and locality. At this sale Stephens, one of the appellants, bought the Grampus, and the respondents bought the Mohawk. The boats were in the river, about seven miles distant from each other; and subsequent information disclosed the fact that Bissell was mistaken in his report, and that the Mohawk occupied the position which he had ascribed to.the Grampus, and that the Grampus was situated where he had located the Mohawk. The boats were badly wrecked, and there were no names or indicia visible by which they could be certainly known or identified.

After the sale, Stephens conveyed part of his interest in the wrecked steamer to Goddin, who was also present at the sale; and Goddin and Carlin, the agent of respondents, went down the river for the purpose of wrecking the boats they had purchased. When opposite to where the Grampus lay, (though supposed by the parties at that time to be che Mo-haivk,') Goddin pointed to the boat and told Carlin there was one of his boats. Carlin with his hands proceeded to take out the machinery, tackle, boilers, &c., belonging to the boat and placed them on the bank of the river. Goddin, having ascertained from the inhabitants living in the vicinity that the boat on which Carlin was at work was the Grampus, claimed the property and afterwards took and carried it away. It is insisted here that the printed notices were to sell the boats by name, and that the evidence that they were put up and sold according to their position in the river, as described in Col. Bissell’s report, and survey, was wholly inadmissible, and should have been rejected by the court.

The printed conditions under which a sale by auction proceeds cannot be varied or contradicted by parol evidence of the verbal statements of the auctioneer made at the time of sale, without it be for the purpose of proving fraud — Powell v. Edmunds, 12 East, 7; Shelton v. Livins, 2 Cromp & J. 411; Highgate v. Archway Co., 5 Taunt. 792. But parol evidence that is not repugnant to the printed terms of sale, but is consistent with and explanatory of them, is admissible — Cannon v. Mitchell, 2 Dessaus. 321; Wainwright v. Reed, 1 id. 573-82; Lessee of Wright v. Deklyne, 1 Pet. C. C. 204.

Had the printed notice referred to steamboats afloat, or in such condition that their identity could have been easily ascertained, we do not think that parol evidence would have been admissible to have varied the terms ; but it is doubtful whether the rule can be properly applied to this case, when the special circumstances are considered. The boats were wrecked and abandoned, their identification at the time of the sale was impossible, and they were rather to be taken as masses of rubbish than specific chattels. The notice was to sell the wrecks as they lay. There was nothing positively known as to the names of the boats, which lay in different places ; but it was known that there were boats irrespective of names lying in certain designated localities. All was involved in uncertainty and doubt, and from the confusion arising from such a state of things they were sold by their names as lying in certain positions.. We are inclined to the opinion that the declarations were not repugnant to or inconsistent with the advertisements, but merely explanatory.

The next question is, were the appellants estopped by the declarations of Goddin in pointing out the wreck to Carlin as respondents’ property and conniving at his preserving the machinery at great labor and expense ? It may be said that any act or omission of a party unnatural or inconsistent with what he claims to be true may properly be weighed against him. And where a party by his acts or words causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous condition, he will be concluded from averring anything to the contrary against the party so altering his condition.

This court in Taylor v. Zepp, 14 Mo. 482, and Newman v. Hook, 37 Mo. 207, adopted the language of Bronson, J., that to constitute an estoppel in pais as against a party there must be, 1st, an admission inconsistent with the evidence which he has to give in the title or claim which he proposes to set up; 2d, an action by the other party upon such admission; 3d, an injury to him by allowing the admission to be disproved.

The facts in this case come up to the full measure of the learned judge’s definition. Goddin pointed the boat out to Carlin and informed him that that was his boat. Carlin acted on that admission; lie expended the money of bis employers in performing the duty entrusted to him: and to allow Goddin, in the face of his admission by which he induced Carlin to act, to come in with countervailing proof, would not only be inflicting an injury on the opposite party, but, would be directly inconsistent with the admissions which he had previously made, and on which the other party acted.

But it is said that although Goddin may be estopped, his admissions cannot affect his co-defendant Stephens. One party, it is true, cannot generally prejudice the interest of another by making statements, unless the latter has in some manner assented to or ratified them. We know of no exception to this rule when the parties do not stand in some relation of privity. But here Goddin and Stephens were joint owners. Goddin represented both parties; he was acting as agent for the partnership in attempting to reclaim and preserve the partnership property, and any act or declaration made by him whilst carrying out the undertaking was admissible as a part of the principal transaction.

Had a trial of the right of property ensued when Goddin seized it on the river bank, and Goddin alone been a party to it on one. side, the judgment would undoubtedly have bound Stephens whether he appeared as a party to- the record or not; for it seems now to be well settled that a judgment against a servant or agent who defends a suit in right of his master or principal will be conclusive against a renewal of the controversy by the latter — Heller v. Jones, 4 Binney, 11; Case v. Reeves, 14 Johns. 572; Castle v. Noyes, 4 Kerr, 329; Bailey v. Poster, 9 Pick. 139; Peterson v. Lathrop, 10 Casey, 223; Farnsworth v. Arnold, 3 Smeed, 252. But the rule would not extend to the case of a part owner where no agency existed either express or implied; for the admissions of one part owner will not bind the other part owners unless, he is constituted the agent of - the others in and concerning the thing owned. The case, however, clearly shows an agency; Goddin and Stephens had a joint interest, and Goddin was acting for both.

The judgment must be affirmed.

The other judges concur.