53 N.C. 478 | N.C. | 1862
The case was submitted to his Honor and the jury upon the following (479)
CASE AGREED.
"The title to the engine in question was in James F. Jordan Co. on 24 July, 1851, when William D. Cooke, one of the partners, conveyed his interest therein to P. F. Pescud, as trustee, for sale, etc. On 7 November, 1851, James F. Jordan, another partner, conveyed his interest to one W. H. Jones, as trustee, for sale, etc. As was understood between the parties to these conveyances, the partnership of James F. Jordan Co., which consisted of other partners besides the two mentioned, was still carried on, and so continued to be, retaining the possession of the property until it became insolvent, at which time, by assignments, its property became vested in the plaintiff, the corporation having conveyed the same in 1855 to one Benedict, in payment of a firm debt, who, upon 6 June, 1856, conveyed it to the plaintiff, as trustee, for sale, etc. After this, P. F. Pescud, being in his own right, and as agent for Jones, about to make sale of the property, conveyed as above, and not knowing that the engine in question was included therein, was informed by Mason that it was so included, and that he ought to sell it, he (Mason) having no claim upon it. There was no evidence that the defendant had any knowledge of this conversation before the sale.
Pescud, accordingly, a few weeks afterwards, to wit, in November, 1857, offered it at public sale, with the other things, and stated to the bidders that his title was good, asking if any one present had any claim, but stating he only sold his right to it and that of Jones. Mason was present within hearing and made no objection. He also bid for the engine, but it was purchased by the defendant.
It is admitted that Mason then believed Pescud's title was good; subsequently, however, in consequence of the decision in Bank v. Fowle,
"It is agreed that unless defendant was tenant in common with the plaintiff, or as against the plaintiff sole owner at the time of the demand *366 and refusal, there was a conversion before the bringing of this (480) suit, and that if he were tenant in common there was a conversion, supposing that a claim to the exclusive ownership amounted to such."
These facts being agreed upon, his Honor charged the jury in favor of the defendant, who rendered a verdict for the defendant. Judgment, and appeal by plaintiff.
It appears from the agreement of the parties that at the time when the defendant purchased the steam engine in question at the public sale made by Pescud, the plaintiff was the owner of it, but it is contended for the defendant that the plaintiff, in consequence of his declarations and acts, is stopped from asserting his title to the article. The argument is that it must be taken either that the plaintiff had waived his title and thereby authorized Pescud to sell the article, or that he cannot now be allowed to assert it, because it would be a fraud upon the defendant to permit him to do so. In support of his argument the counsel for the defendant has cited and relied upon Bird v. Benton,
To evade the force of these propositions, it is insisted for the plaintiff that at the time when he spoke to Pescud he was ignorant (481) of his own title, as he was also at the sale, and that there was no evidence to show that the defendant was misled by what he had said or done, or that the defendant had purchased the article in question in consequence of his declarations or acts.
The counsel for the plaintiff has, in support of his views, referred toWest v. Tilghman,
We have examined these and the other cases referred to by the counsel on both sides, and in our opinion the true principle to be derived from *367 them is this: Where a person purchases a chattel from another who is not the owner, and it is admitted by the parties or found by the jury as a fact that the purchaser was induced to make the purchase by the declarations or acts of the true owner, the latter will be estopped from impeaching the transaction; see Pickard v. Sears, 33 Eng. Com. L., 117. If, then, in the present case it had been stated as an agreed fact that the defendant purchased the steam engine in question from Pescud in consequence of what the plaintiff told Pescud or in consequence of the conduct of the plaintiff at the time of the sale, we should say that the latter could not recover. That fact cannot, however, be inferred by the court from anything stated in the case agreed, and it must be left as a question for the jury, upon whatever competent and relevant testimony the parties may be able to produce on the trial. The case agreed was made up in the court below, to be "submitted to his Honor and to the jury," and his Honor took it upon himself to decide a question of fact which he ought to have left to the jury, in consequence of which there is error, and the judgment must be reversed, and a
PER CURIAM. Venire de novo.
Cited: S. c.,
(482)