6 Indian Terr. 124 | Ct. App. Ind. Terr. | 1905
(after stating the facts). The appellant has filed four specifications of error, as follows: “(1) The court erred in permitting to be read in evidence, over plaintiff’s objection, the affidavit of George Cloud, dated September 7, 1903. (2) The court erred in permitting to be read in evidence, over the objection of plaintiff, the letter, of date March 6, 1903, addressed to Mrs. A. B. Davis, and purporting to be signed by George Cloud. (3) The court, as part of its instructions to the jury (which are set out in full in the Record, 9), over objection of plaintiff, said: ‘However, if a trade was pending between plaintiff and George Cloud, by the terms of which Cloud was to receive from plaintiff a wagon when he should give her a lease upon his land, and the plaintiff allowed him to take the wagon in controversy, and use it in such a way as that third persons
The alleged error assigned in the first specification is that the affidavit of George Cloud was allowed to be introduced to contradict the testimony of said Cloud given at the trial. The affidavit was made on September 7, 1903, and the trial took place on February 11, 1904. On the trial said Cloud testified through an interpreter by the name of Caesar Bowlegs, and he stated. “I don't understand English much,'' and upon cross-examination he says, “I did not make the statements contained in the affidavit presented to me, dated September 7, 1903,” and sworn to on said date before the clerk of the-court. It appears that, when Cloud made the affidavit, he used one Isaac Bottley as interpreter, who was not sworn; and appellant contends, by reason of that fact, that said affidavit, therefore, embodies only statements which Bottley claims that Cloud made to him on the subject, and is purely hearsay evidence, and was therefore inadmissible for any purpose.
Appellant, in support of her contention, cites the case of State vs Noyes, 36 Conn. 80, 4 Am. Rep. 37, as follows: “A foreigner, ignorant of the English language, had testified through an interpreter as to certain facts, and on cross-examination had denied stating the facts differently. The opposing party then offered a witness to testify that some time before
The second specification of error alleged is the admission by the court of a certain letter purporting to be signed by Cloud. The record discloses that upon the trial of the cause, and upon the cross-examination of Cloud, a certain letter was presented to Cloud, and he testified as follows: “I did not write the letter addressed to Mrs. Davis here shown to me. Do not know anything about what is in it? I did not sign it. Did not give it to the man who took the wagon from my house.” The defendant upon the trial introduced as a witness William Meadows, who testified as follows: “As agent of the bank, I went to the old Cloud place. George Cloud did not live there then, but was there. He lived about a mile away. I had his mortgage and note t^ the bank, and asked him where the wagon was. He told me it was at his home. There was a woman there, and she wrote a letter to Mrs. Davis, here shown me, with George Cloud's name to it, and George Cloud handed it to me and told me to give it to Mrs. Davis. I told him that I would leave it at the bank and they would give it to her.” When Cloud handed the letter to Meadows and told him to give it’to Mrs. Davis, we think it was properly admitted to contradict his statement that he did not give it to the man who took the wagon from his house.
The third specification of error assigned was the giving of a certain instruction to the jury. The court instructed the jury, among other things not complained of, as follows: “If the plaintiff purchased the wagon and harness, and has never parted with the title thereto, then they were her property, and, if the defendant took them and held them, she would have a right to recover against him the property, if found;
Cloud's affidavit, which was admitted to contradict his testimony on the trial, was as follows:
*132 “George Cloud, being duly sworn, states: That on the----day of March, 1902, I bought one Springfield wagon from Mrs. A. B. Davis, agreeing to give her therefor as purchase price a lease on my allotment consisting of 40 acres of sand. I took possession of the wagon, and have been ready ever since to make the contract, but have never done so. I had possession of the wagon on the 2d or 3d day of June, 1902, when I came to Wewoka, I. T., and mortgaged same to the First National Bank [of Wewoka, I. -T. I still remained in possession of the wagon until the---day of April, 1903, when I turned the wagon over to the First -National Bank to satisfy an indebtedness due them which they held a mortgage on said wagon. Mrs. A. B. Davis has been trying to get me to say that the wagon belonged to her, but I would not do so. Mrs. Davis still says she wants the land. Mrs. Davis has never demanded the wagon of me, although I have had it for over a year. Since I mortgaged the wagon, she now wants 80 acres of land, instead of 40. This affidavit was read to me by the United States clerk at Wewoka. I understand the contents.
“(Signed) George Cloud.
“Subscribed and sworn to before me this 7th day of September, 1903. I hereby certify that the above affidavit was read by me to George Cloud before he signed his name, and he states that the same was true, this 7th September, 1903-
“(Signed) R. P. Harrison, Clerk,
“By R. A. Bayne, D. C."
The contention of appellant is that there was nothing in the evidence to warrant the giving of the instruction, to which objection was made, and appellant cites the following authorities: In 11 Enc. Pl. & Pr. 128, it is said: “It is error for the court in instructing the jury to assume the existence of
Did not the appellant put it in the power of Cloud, when she gave him possession of the wagon to keep until they “consummated an agreement,” to misrepresent his possession and ownership, so “that third parties were led to believe that it was Cloud's property?” In Ewart on Estoppel, pp. 18, 19, it is said: “The second alternative of the condition confronts us with problems altogether peculiar to the law of estoppel. It will be observed that it implies, notwithstanding what has already been said, that a man may under certain circumstances be estopped, not merely by his own misrepresentations, but by the misrepresentations of another person. It implies further, as we shall see, that he may be estopped by such a misrepresentation, if he has assisted it, although he has been perfectly innocent of any intention to do so, and although unaware of the misrepresentation until after the mischief has been accomplished. This class of cases the writer ventures to denominate 'Assisted Misrepresentation,' for the estoppel arises from the assistance rendered by the estoppel denier to the misrepresentation."On page 20 it is said: “A perusal of the cases leaves upon the mind this impression: That one man may be estopped by a misrepresenation made by another, when the former, in breach of s ome duty to the deceived person, has supplied the defrauder with that which was necessary to make the representation credible.” And on page 24 it is said: “Ostensible Ownership. There are very many cases in which estoppel is due to assisted misrepresentation by ostensible ownership. That is to say, the true owner of property may be estopped from asserting his title by enabling some other person to successfully represent himself as the owner, and thus to deceive an innocent purchaser.” We are clearly of the opinion that the appellant by her acts placed it in the power of
The judgment below is therefore affirmed.