Homan v. Laboo, 2 Neb. 291

2 Neb. 291 | Neb. | 1873

Ceottnse, J.

This cause comes from the District Court for Otoe County. It was an action instituted by Homan to recover a span of mules. The plaintiff’s claim to recover is based on the following facts: —

On June 5, 1868, one Ward came to Homan, a livery-stable proprietor in Omaha, and requested him to sign a replevin bond in a suit just begun by Ward against another party, in whose possession he found the mules in question. Homan did so to oblige him, and upon the understanding that Ward would return to Nebraska City, where he was ’ acquainted, and bring with him a friend who would take Homan’s place on the bond, and that the mules should be left with Homan till he should be so released. On the eighth day of the same month, Ward returned to Omaha with one Jennings. They met Homan on the street, where Ward informed him that Jennings would go on the bond; to which Homan replied, “ I am glad of it.” Jennings did go to the officer having the bond, and sign it; leaving Homan’s name on, of course. The next morning Ward went to Homan’s stable, and, in the absence of Homan, assuring Hammet, the person in charge, that he had Homan’s consent to take the mules away, induced Hammet to let him have them upon paying the charges for their keeping. Ward took the mules to the vicinity of Nebraska City, where, on the third day of July, he sold them to Laboo. Laboo swears that he bought them innocently and in good faith, and paid full value for them; and there is nothing in the record to question this. Homan, on the same morning the mules were taken by Ward, was advised of the fact, but took no steps to effect their return ; and, while he himself swears that he supposed them to be about Nebraska City, he never sought their return until a short time before bringing this action, — in October of the same year, — and till about the time he found himself compelled to pay the amount of damages assessed against Ward in the latter’s action to recover the mules.

From all this, it is quite clear to my mind, that, at the time Laboo^purchased the mules, Ward was in possession, and assuming to be the owner of them, by the tacit assent of the plaintiff. Whether this was so because of an innocent mistake by both Ward and Homan as to the effect of Jennings’s signature to the bond, or whether this belief on the part of Homan was induced by the fraud of Ward, it is very evident from the conduct of Homan that he considered himself released, and permitted Ward to have the mules. In either case, the rights of innocent third parties cannot be attacked. The rule is a familiar one, that, where one of two innocent parties must suffer by the wrong of another, he who puts it into the power of such persons to commit the wrong must bear the consequence. So, where the owner of property (whether general or special is immaterial) is induced to part with it through the fraud of .another, the one so acquiring the possession can transfer a good title to an innocent purchaser. Morey v. Walsh, 8 Cow., 238; Fassett v. Smith, 23 N. Y., 252; Winnie v. McDonald, 39 id., 240 ; Hall v. Hincks, 21 Md., 406 ; Shufeldt v. Pease, 16 Wis., 659.

Complaint is made to one of the instructions of the Court, which is in the following language : “ Although the jury may believe from the evidence that the plaintiff, or his agent who had charge of the mules, was deceived or defrauded by Ward into parting'with the possession of the mules, yet if the plaintiff or his agent voluntarily parted with the possession of the same, and afterwards, while Ward was in possession, Laboo bought them of him in good faith for a valuable consideration, and without notice of plaintiff’s claim, they will find for the defendant Laboo.”

The evidence shows no greater authority in Hammet than belongs to any stable-man; and such authority could not extend to the releasing of property pledged to his employer as indemnity against his liability on bonds. As an abstract proposition of law, therefore, the charge, as far as relates to the agent, is erroneous. But, in the view I have taken of the case, it is harmless.: It is a matter of no consequence who let the mules go from the stable. The testimony before us admits of no other conclusion than that Homan permitted them to remain with Ward, and, in effect, indorsed what had been done by his agent.

A judgment will not be reversed because of the giving of an erroneous instruction, where this Court can see that no harm has arisen therefrom.

The judgment of the District Court must be affirmed.

Judgment affirmed.