144 Ind. 46 | Ind. | 1895
This case comes here from the Appellate Court under the proviso of section 1362,R. S. 1894, regulating the jurisdiction thereof, with a recommendation of a majority of that court that a certain decision hereinafter named, affecting the questions involved in this appeal, be overruled.
The facts of this case as disclosed by the evidence are briefly as follows:
In August, 1885, the appellee, Jennie Klinsick, was a married woman, the wife of one William Klinsick. She was sole owner of about $1,300 in money which
Nor was there any evidence which tended to show that Mrs. Klinsick had any knowledge of the execution of the mortgage by her husband at the time the same was done, or that she authorized him to execute the same. Mrs. Klinsick testified that she was the owner of the goods at the time the mortgage was given, and asserted such ownership by reason of the
She brought this action to recover the value of the goods alleged to have been converted. The appellants answered the general denial and two special paragraphs in estoppel. The issues joined were tried by jury, which returned a verdict for appellee in the sum of $690, on which final judgment was rendered. The only assignment of error discussed by appellants’ counsel is that of overruling the motion for a new trial. In their motion for a new trial the appellants charged that the trial court erred in excluding certain evidence offered by them, and in improperly instructing the jury and in refusing to instruct the jury as requested by them. On the trial the appellants were permitted to give in evidence the declaration of William Klinsick, concerning said business and the
The court also, of its own motion, gave several instructions to the jury bearing upon other questions to which the appellants excepted. The appellants presented to and requested the court to instruct the jury on the subjects of agency and estoppel in pais. The court refused these requests. These instructions are very lengthy, and we will not encumber this opinion by setting them out. If, upon the above facts, the law. is with the appel lee then the ultimate judgment is right and no intervening error, if any there be, will avail the appellants in securing a reversal. In this branch of the case the appellants contend, first, that the facts disclose that William Klinsick was the agent of the appellee, with full authority to mortgage the stock in his own name for her; second, that the facts establish an equitable estoppel against her. The usual method of transacting business by an agent is to use the name of the principal, but if the agent transact the business in his own name, but actually for an undisclosed principal, the person with whom the contract is made may, when he discovers the principal, elect to hold the principal for the contract, although he may have dealt with the agent, believing him to have been the principal and given him credit. Thomson v. Davenport, 9 B. & C. 78; Mechera Agency, section 697; Story Agency, sections 446, 449; Thomas v. Atkinson, 38 Ind. 248. Conceding, without deciding, that the facts of this case show that William Klinsick was the general agent of Mrs. Klinsick in the management of the business, and had power to buy goods upon credit, and to retail them and to apply the proceeds to the payment of the debts contracted, it does not follow that he had authority to execute the mortgage. An agent authorized to sell either real or personal
This being true, it does not occur to us that they were misled into doing the very thing they were proposing to do, before the declaration was made. Nor does it appear that the appellants took the mortgage relying upon such declaration. Moreover, the evidence of these declarations of the appellee, Mrs. Klinsick, if it stood wholly uncontradicted, was entirely without force, because it did not tend to establish any fact in issue in the case. It has been argued by the learned counsel as evidence establishing an estoppel in pais against Mrs. Klinsick’s assertion of title to the goods in question.
That is certainly the nature of that evidence and it may be truly said that it has no other tendency or relevancy to the case.
But there was no answer setting up any such estoppel.
It has been repeatedly held by this court that if facts constituting an estoppel exist, they must be pleaded specially. Fleener v. Claman, 112 Ind. 288; Robbins v. Magee, 76 Ind. 381; City of Delphi v. Startzman, 104 Ind. 343; Sims v. City of Frankfort, 79 Ind. 446.
The case of McGirr v. Sell, 60 Ind. 249, is a much . stronger case against the right to invoke the aid of an equitable estoppel than is made by our conclusion
But in case of ordinary personal property it is different. The title to such property may be, and ordinarily is, transferred from seller to buyer by a mere verbal agreement. And the seller may secure himself by retaining the title until it is paid for, although he delivers the possession to the vendee. If there was any legal mode of making this contract a matter of public record or notoriety, he might be estopped from asserting his title against a bona fide purchaser, on his failure to so make it public. But there is not. He cannot mark or brand the property so as to convey correct information to the world, because such marks may be effaced.
If he may not sell his property, retaining the title for his security lest some one too full of trust and confidence shall purchase it bona -fide and in ignorance of
Every man who purchases personal property of another ordinarily takes chances of losing the purchase-price, if he has failed to inform himself in advance as to the title of the seller, if such seller is not financially good.
In Mansur v. Haughey, 60 Ind. 364, a case very much in point here, at page 370, it was said, by this court, that: ‘‘ The doctrine of estoppel in pais involves that of contributory negligence.” And that case cites with approval McGirr v. Sell. He who purchases ordinary personal property of another, whose financial standing is not good, without informing himself as to the state of the title, certainly acts imprudently to say the least of it. It was within his power to obtain correct information. It was not in the power of the conditional vendor ordinarily to inform the world that he had retained the title until the purchase-money was paid. Had he known of the contemplated sale by his conditional vendee before it was consummated, the imperative duty to forbid it arose; and on failure of which he will be estopped. But where he knows nothing of it, he cannot be made chargeable with the consequences of the over-confident purchaser’s imprudence and negligence in trusting to the man whom the original vendee would not and did not trust. In such a case the conditional vendor has done no act or said no word to mislead the Iona -fide purchaser to confide in the conditional vendee’s title, nor has he remained silent when he ought to have spoken with like effect.
The same principles apply where the owner puts his property into the possession of his agent to carry on a certain business for such principal. One who deals with such agent in regard to such property, outside of the line of business he is authorized to and is carrying on for his principal, without imforming himself as to the title of such agent, cannot invoke the principle of estoppel in pais against the principal’s assertion of title, unless such principal has done or said more than simply to put such agent in charge of such property and business, clothing him with power to carry it on calculated to mislead the person so dealing with such agent. In the language of Mitchell, J., speaking for the court in Alexander v. Swackhamer, 105 Ind. 81: “To constitute an estoppel the party sought to be estopped must have designedly done some act or made some admission inconsistent with the claim or defense which he proposes to set up, and another must have acted on such admission.”
If this is not law, then a man is bound to refrain from employing agents to carry on any business for him in connection with any property unless he does so at his peril. The principal cannot give notice to all the world that he is the owner of the property and that his employe is but his agent to sell at retail. .When the world finds the agent selling at retail con
But where the whole business is sold out, as was practically done in this case, by the agent without the knowledge, consent or authority of the principal, there are no facts on which an estoppel in pais can rest.
In Dean v. Doe, 8 Ind. 475, at page 479, it is said: “Estoppels are said to be odious. But the truth is, says Smith, that the courts have, for some time, been favorable to the doctrine of estoppel—hostile to its technicality. 2 Lead. Cas. 460. It is only when used to entrap by formal statements and admissions, looked upon as unimportant when made, and by which no one was ever deceived or induced to alter his position, that estoppels are still, as formerly, odious.”
In Lash v. Rendell, 72 Ind. 475, Rendell purchased certain land on which there was a judgment lien which he agreed to pay as a part of the purchase-price. When he came to pay the judgment, he found several receipts of payments endorsed on the record where the judgment was entered, and supposing them correct, paid the balance of the judgment to the clerk of the court, and paid all the balance of the purchase-money to the administrator of the estate of the deceased vendor. The receipts proved to be incorrect, being for too much. When sued by the owner of the judgment for the balance he set up these facts,
The case just quoted from has an important bearing here because t-he law does not provide for the mode of transferring ordinary personal property any more than receipting on the record for the payment of a judgment, as the law was at that time. And also the case involves the element of contributory negligence on the part of the one relying on the receipts. He was bound to know that they could be contradicted or explained. Hence the duty devolved on him to inform himself as to what the true amount of the judgment was which remained unpaid. If there had been, as the court intimates, an honest mistake made by duplicating a receipt for one payment, which was unintentional on the part of the judgment plaintiff, that was not good ground for an estoppel.
The case last quoted from strongly supports McGirr v. Sell, and would have to be overruled if the latter case should be.
The facts in the Peters Box and Lumber Co. v. Lesh, 119 Ind. 98, are that the appellant, carrying on a saw mill business in Fort Wayne, had previously em
On this state of facts the appellant lumber company defended the suit to recover the value of the logs by said appellees on the ground that they were equitably estopped from asserting title to the logs by the circumstances of their permitting the bill of lading to be made out in Milliard’s name, and the subsequent purchase by the appellant in good faith, relying on said bill of lading showing title in said Milliard. But the trial court denied such defense, and this court affirmed the judgment.
After quoting from Alexander v. Swackhamer, supra, a part of which is already quoted in this opinion, Coffey, J., speaking for the court, said: “If the appellees acted under the belief that Milliard was the agent of the appellant, and that they were selling the property to the appellant, basing such belief on the representations made to them by Milliard, we do not
They were correctly decided, because in the former case the appellant, Lesh, the owner of the judgment, did not know the facts out of which her rights sprung when she did the acts which were set up to estop her. She did not know that duplicate receipts of one payment had been placed on file. And in the other case, Lesh et al. did not know the facts out of which their rights sprung when they did the act set up to estop them, namely, allowing the bill of lading to be made out in the name of Milliard, they supposing from his false representations that they were selling the logs to the lumber company through him as the agent of such company. So that in both cases there was an essential element of an estoppel in pais lacking. In Robbins v. Magee, 76 Ind. 381, supra, set page 388, Elliott, J., speaking for the court, said: “The doctrine that a person who does an act in excusable ignorance of a material fact is not thereby estopped, is founded in sound reason and is well sustained by authority.”
In the Greensburgh, etc., Turnp. Co. v. Sidener, 40 Ind. 424, it was said: “To constitute a valid estoppel by conduct, there must be knowledge on the part of the party sought to be estopped, and want of knowledge on the part of.the party relying upon the estoppel.”
To the same effect are Allen v. Frazee, 85 Ind. 283; Hays v. Reger, supra; Hosford v. Johnson, 74 Ind. 479.
And the same principle underlies and supports McGirr v. Sell. The answer upon which the question there arose not only failed to show that Sell, by act, conduct or declaration, induced McGirr to levy upon,
In Fletcher v. Holmes, supra, it is said: “The door is shut against asserting a right when that would result in doing an injury by the person asserting it to some other person.” And in Anderson v. Hubble, supra, at page 578, it is said: “It is quite clear that one who has not parted with value or has not placed himself in a position where he would suffer loss, can have no
To the same effect are Maxon v. Lane, 124 Ind. 592; Wisehart v. Hedrick, 118 Ind. 341; Babcock v. Peoples’ Savings Bank, 118 Ind. 212; Stringer v. Northwestern Mut. Life Ins. Co., 82 Ind. 100.
And so in the case at bar, there is no averment in either of the answers in estoppel of the insolvency of the appellee, Mrs. Klinsick, or any reason stated why A. Kiefer & Co. could not have enforced collection of their debt from her. The assertion of title by her to the goods was equally an assertion that she was their debtor.
While we do not mean to approve of all that was said in McGirr v. Sell, yet we cannot say that a wrong conclusion was reached on the facts disclosed in the answer.
It follows from what we have said, that the circuit court did not err in overruling the motion for a new trial.
Judgment affirmed.