110 Iowa 135 | Iowa | 1899
On the thirty-first day of" July,. 1896, Strohmeyer Bros, commenced in the district court of Story county an action against J. J. McGrath, aided by attachment. A writ of attachment was delivered " to the defendant, as sheriff of Hamilton county, for service, which he served on the date mentioned by levying uuon and taking-in to his possession five bicycles,' which were subsequently-sold by him under a special execution issued in the case-specified. The plaintiff claims, and the district court was: authorized to find, that when the writ was issued and levied the bicycles taken thereunder were owned by the plaintiff.'The defendant pleads and insists that the plaintiff isestopped to assert title against him by reason of facts substantially as follows: The action of Strohmeyer Bros. was: to recover an amount due for merchandise sent by the' firm to McGrath on the 11th day of April, Í896. At that timer he was .engaged in the mercantile business at Nevada, and the merchandise sold was delivered there; but he had previously, been in business in Webster City, and the plaintiff" had been employed by him there as clerk. McGrath had-carried on a hardware business in Webster City, but disposed of his stock of hardware in the latter part of March,-1896. As we understand the te-stimonv of the plaintiff, he-co-ntinued business in the place McGrath had occupied, without ostensible change of management or ownership.McGrath had given his permission to use his name in busi
We are of the opinion that the district court was authorized to find that the plaintiff was not estopped, by what lie did or omitted to do at the time the writ of attachment was issued and levied, from asserting’ his ownership of the property in dispute, as against the defendant, and that, if an estoppel exists, it must be based on the conduct of the qilaintiff at the time Strohmeyer Bros, made the sale to McGrath. At that time, on the theory of the facts most favorable to the defendant, the hardware stock in Webster City had been disposed .'of, and McGrath had -moved to-Nevada. He carried a few bicycles in the latter part of the year 1895, but had none on hand, and none had been ordered, when he disposed of his stock of hardware. The •district court, however, may well have found the facts- to be less favorable to the defendant than the theory suggested. The date in March on which the stock of hardware wás disposed of is not shown. The business subsequently carried -on by the plaintiff was that of dealing, in bicycles, but there is no evidence in regard to the value of the stock he carried .at any time. Miller states that the order for the goods sold te McGrath was received in March, that inquiries in regard to his standing were made at the time the order was received, and that the goods were sold in March, although not delivered until the eleventh of April. There is nothing-