80 W. Va. 439 | W. Va. | 1917
The judgment complained of on this writ of error was recovered in a circuit court, on appeal, in an action started in a justice’s court, for the recovery of the value of a lot of railroad cross-ties alleged to. have been wrongfully taken and converted to their own use, by the defendants.
The ties were made from timber the plaintiff claims to have purchased. A certain heifer was traded for the timber and $2.50. The heifer and a male calf had been received from
Claiming to have advanced about $400.00 on the ties, under a contract, made before they were gotten out, with Higgin-botham, for purchase and delivery thereof at the railroad, the White Sulphur Supply Company through its manager, loaded all of them into ears and took them away, over the protest of the plaintiff. Part of the advancement had been made through the Mountain Milling Co., at the instance of the White Sulphur' Company. Both companies, Crickenberger, manager of the supply company, and Huddlestun, manager of the other, were all made defendants and judgment taken against them.
Higginbotham swears he bought his half interest from plaintiff’s husband, and that the other half was given to him “to stand good for” Kyle’s “account until this timber was got out.’’ The White Sulphur Company admittedly had a judgment against Kyle and would not credit him. Kyle went with Higginbotham to see Crickenberger and stood by while he made the contract of sale, in advance of the making of the ties, on which the advancements were made. Higginbotham gave orders on the company to Kyle and to the hired men for goods, including feed for stock, and perhaps, money, and boarded with Kyle while the work went on. While it was in progress, the Kyles, as well as Higginbotham, largely lived and fed their stock out of the company stores. Mrs. Kyle
Hylton from whom the timber was bought says he sold it to Mr. Kyle and the trade was closed, not in the road at Kyle’s, but at McG-rady’s, after the talk at Kyle’s, but on the evening of the same day, and in the absence of Mrs. Kyle, but with Higginbotham present. While they talked in the road, Mrs. Kyle’s title to the heifer was admitted,, but she told Kyle he would have to pay her $40.00, if he traded it for the timber. He says Mrs. Kyle’s conversation in the road was limited to the heifer and she took no part in the timber trade beyond the assertion of her claim against Kyle for $40.00. Kern, the sawyer says Kyle let him have a cow on the saw-bill at $45.00 and, at Mrs. Kyle’s request, he credited on the account, $5.00 a man working for him owed her. None of Hylton’s or Higginbotham’s testimony is expressly denied. Nothing stands against it except the inconsistency of the plaintiff’s and her husband’s claim as to her ownership of the heifer and her purchase of the timber and resale of half of it to Higginbotham.
The plaintiff’s ownership of the heifer, if established, does not necessarily make her the owner of the ties, as against the White Sulphur Supply Company. There is a widely operative-principle known as estoppel, which forbids assertion of her title, if she knowingly permitted her husband, by the use of her personal property, to obtain credit upon it, under belief in good faith, on the part of a stranger, induced' by his representation of his ownership, with her knowledge and acquiescence, that it belonged to him. 13 R. C. L. p. 1165. Title, Husband and Wife, sec. 191, citing numerous authorities fully sustaining the text. An overwhelming preponderance of the evidence adduced brings this case within that
As between Higginbotham and the supply company, the title passed to the latter, on delivery of the ties at.the railroad, and the plaintiff is estopped by her conduct, from assertion of title in herself.
Being plainly against law, the verdict should have been set aside. The judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed, verdict set aside, and new trial granted.