263 Mass. 10 | Mass. | 1928
This action of tort is before us for determination upon the whole record, including the pleadings and a transcript of the entire testimony taken at the trial to a jury in the Superior Court as certified by its official stenographer and reserved by the trial judge under the provisions of G. L. c. 231, § 119. At the close of the evidence and subject to its exception, the plaintiff’s motion for a directed verdict was denied. The jury returned a verdict for the defendant.
In its declaration and amendment thereto, the plaintiff alleges the conversion by the defendant of three specifically described automobile trucks. The defendant pleads a general denial and estoppel.
Briefly stated the facts are as follows: During the years 1918 and 1919, one Fred C. Henderson, as president and treasurer of the Fred C. Henderson Company and the Signal Motor Truck Company, sold each of the trucks in contro
The presiding judge, without objection, instructed the jury that at the time of sale to the defendant, title to the trucks was in the plaintiff; that "if we stopped right there in this case the plaintiff would be unqualifiedly entitled to recover”; but the defendant claims that the plaintiff is estopped from asserting ownership in these trucks because of failure on the part of its manager to claim it, either to the receiver in bankruptcy, the auctioneer, or the purchaser — knowing, as he did, that the trucks were intermingled with those of the Henderson companies — and that the plaintiff, therefore, is forever estopped from prosecuting that claim, notwithstanding the legal title was in the plaintiff at the time the Henderson companies’ assets were sold. Having explained, in substance, to the jury that estoppel, in law, is the.preclusion of one to deny that which by his own conduct he may have induced or permitted another to believe and act on to his prejudice, the trial judge continued: “I don’t assume to say, as matter of law, whether there was any act of estoppel there or not. . . . That I will leave to you as a matter of fact. Finding that there was no estoppel, you come to the question of damages .... And on that I can help you not at all.” No exception was taken to the charge, and no statement therein can be construed as prejudicial to the plaintiff.
The exception, saved by the plaintiff, to the refusal of the trial judge to direct a verdict in its favor, is without merit. It was for the jury on all the evidence to find whether the plaintiff’s agent, by remaining passive at a time when his silence might produce an erroneous impression, created an estoppel which thereafter precluded it from asserting title to the property, and that if the finding was in the plaintiff’s favor, the question of damages was preeminently for the jury.
A careful reading of the certified transcript of the testimony discloses no error in the admission of the oral and documentary evidence which was the subject of the plaintiff’s remaining exceptions. There was evidence from which the jury was warranted in finding that these trucks were in
Judgment for defendant on the verdict.