60 Ind. 249 | Ind. | 1877
Lead Opinion
In this action, the appellee, as plaintiff', sued the appellant, as defendant, in the court below, to recover damages for the alleged unlawful taking and conversion, by the appellant, of two barrels of whiskey, the property of the appellee, of the alleged value of three hundred dollars.
Appellee’s complaint was in three paragraphs; and the issues joined thereon were tried by a jury in the court below, and a verdict was returned for the appellee, assessing
Appellant’s written motion for a new trial was overruled, and judgment was rendered on the verdict by the' court below, from which judgment this appeal is now here prosecuted.
In this court the appellant has assigned several alleged errors of the court below; but his counsel, in their argument of this cause, consider and rely upon only one of these alleged errors, as “ sufficient to secure a reversal of the judgment below.” The alleged error of the court below, thus relied upon by appellant’s attorneys, is assigned on the l’ecord as follows:
“ 2. The court erred in sustaining the plaintiff’s demurrer to the 2d paragraph of the defendant’s amended answer to the 3d paragraph of the complaint.”
In this 2d paragraph of the appellant’s amended answer to the 3d paragraph of appellee’s complaint, the appellant alleged, in substance, that, long prior to the alleged taking and conversion of said whiskey, to wit, on the — day of-, 1872, the appellee made an ar- , rangement with one Charles McCoy, by which he procured and caused said McCoy to commence and carry on, in the city of Richmond, in Wayne county, the business of retailing intoxicating liquors; that said McCoy, in pursuance of said arrangement, applied for a license in his own name, from the board of commissioners, to retail intoxicating liquors in a certain saloon in said city, known as the “ Continental Saloon,” and being refused by said board, he appealed therefrom to the Wayne Common Pleas Court, wherein he obtained such license; that said McCoy, on the hearing of said application before said court, swore and testified, with the knowledge and approbation of the appellee, that he, said McCoy, was the sole proprietor of said saloon, and no one else was interested in said business; that the appellee, in pursuance of said arrangement, furnished said McCoy with the means to
To this 2d paragraph of appellant’s answer, the appellee demurred on the ground of the alleged insufficiency of the facts therein to constitute a defence to the Bd paragraph of his complaint.
This demurrer was sustained by the court below, and to this decision the appellant excepted. This decision the appellant has assigned as error, and for this alleged error only, he now asks this court to reverse the judgment of •the court below.
In discussing the sufficiency of this 2d paragraph ■of appellant’s answer, as a defence to appellee’s action, the learned attorneys of the appellant thus state their first position in regard to said paragraph:
“ The facts thus set up were such as to work a complete estoppel against the plaintiff, and to preclude him •from asserting ownership of the goods as against the ■defendant.”
In our view of the paragraph in question, appellant’s position is not well taken. We have examined and considered each and all of the averments of this paragraph with gi’eat care, and we have failed to find that the appellee is therein or thereby charged with any intended deceit, either in his conduct or declarations, or with any fraud, actual or constructive, whereby the appellant was ■induced to levy upon, take and convert the whiskey, described in the complaint, as the property of Charles Mc-■Ooy. Indeed, this paragraph of the answer utterly fails
The second position assumed by appellant’s counsel in argument is, that the facts set up in this paragraph of answer “ show that McCoy had such an interest in the goods as made them the subject of levy upon the particular executions described, notwithstanding the qualified OAvnership of the plaintiff, as between himself and McCoy.” This point the learned attorneys have merely stated, and have failed to elucidate it by argument. Under the averments of the answer, the whiskey Avas the property of the appellee; and, if it had been sold at a
Our conclusion is, that the court below did not err, in ■•sustaining the appellee’s demurrer to the second paragraph of the appellant’s amended answer to the third paragraph •of appellee’s complaint.
The judgment of the court below is affirmed, at the ■costs of the appellant.
Rehearing
Ox PETITION EOR A REHEARING.
The appellant, in this case, has filed an ■earnest petition for a rehearing in the cause, and an able brief in support thereof, and we proceed to reconsider the ■question involved.
The following paragraphs from the petition will sufficiently indicate the positions assumed by the counsel:
“ What we claim,” says the petition, “ is, 1st, that, under the facts, the whiskey in controversy was subject to levy and sale under the executions described; and, 2d, that the appellee was clearly estopped, against the execution plaintiffs, from claiming that the property so levied ■on belonged to him, and, being so estopped, such estoppel ■operates equally in favor of the appellant, who was acting for, and on behalf of, such 'creditors, in the enforcement of their lawful rights under such judgments and executions. That the appellee was estopped, as against the execution plaintiff, we shall endeavor to show from the authorities. It is a well established doctrine, that, when the true owner of property has voluntarily conferred upon another the usual evidence or indicia of ownership of such property, or an apparent authority to ■deal with it,, he is estopped from setting up his title, as against a party who has dealt in good faith with the party thus having the evidence or indicia of ownership.”
It would be difficult to reconcile all the decisions on the subject of estoppel in pais, and we shall make no attempt to do it in this case. In some cases it is held, that an intent to deceive is a necessary element of the estoppel; while in others it would seem that such intent is not supposed to be necessary. In the case of Piper v. Gilmore, 49 Me. 149, an intent to deceive, or a design to influence the conduct of the opposite party, by a statement made by the party sought to estopped, was held to be necessary to the estoppel. This case seems to have met the approval of Judge Redeield. See note to the case, as reported in 3 Am. Law Reg. n. s. 584. This, however', is not the only particular in which the cases on the subject seem to be in some degree in conflict. We shall not examine many of the cases in detail, but proceed more directly to the question before us. We may first observe, however, that Judge Redfield, in the note above cited, said, that, il While the doctrine of estoppels of record has been advancing to greater stringency, that of estoppels in pais has been constantly relaxing of late. It was at one time supposed that if a party inquired of by a mere intruder, denied his interest in any subject-matter of the inquiry, he was forever estopped from setting up such interest, not only against the party inquiring, but as to all other parties to whom such denial had been communicated. But this broad rule is clearly not maintainable.”
We think it may be conceded, that, if the first proposition of counsel is true, the second one follows. If the property in question was subject to levy and sale under
It may be observed, that no fraud is imputed to the plaintiff, nor is any statement of his in reference, to the property relied upon to work the estoppel. His acts alone are relied upon. These acts consist, in brief, in placing liquor in the saloon, and allowing McCoy to retail it out in his own name, as if he were the proprietor, and sole proprietor, thereof. Until the liquor was retailed out, in the usual course of business, the title remained in the plaintiff. There is nothing in the pleading showing that any thing more than a retail business was done or contemplated.
Now, the plaintiff's in the executions were clearly in no better condition than if they had, in good faith and for value, bought the two barrels of whiskey of McCoy. If the estoppel, or supposed estoppel, would not protect them as purchasers from McCoy, it clearly would not protect them as creditors of the latter. The fact that McCoy retailed the liquor as his own gave the execution creditors no more right to give him credit on the faith that he was the owner*, than it would to have purchased the two barrels on the like faith.
We are of opinion, that the acts of the plaintiff' do not estop him to set up his title to the whiskey as againBt the execution plaintiffs, and that to hold otherwise would overturn several decisions of this court, as well as some well considered cases elsewhere. To be sure, the plaintiff vested McCoy with the possession of the property, and authorized him to retail it out as his own.
If the plaintiff* had authorized McCoy to sell the whiskey at wholesale, that would have ended the question; the title would have passed by a sale made by him, and there would be no need of the aid of the doctrine of estoppel.
But his authority to McCoy to retail in his own name did not necessarily carry the inference that the title to th.eliquors was in the latter. This was the purpose for which the liquors were placed in his possession, and was consistent with the plaintiff’s ownership of the property.
In Thomas v. Winters, 12 Ind. 322, two steers were sold, with the stipulation that the title was not to pass until they were paid for. The purchaser took possession of the steers, used them a while, and sold them. The steers not being paid for, it was held that the original seller might recover them from the vendee of his vendee, the title never having passed. But the original seller put his vendee in possession of the steers, and permitted him to use them as his own. The possession of the steers and the use of them were as much evidence of title as the retailing of the whiskey; yet it was not held that the original vendor -was estopped to set up his title. Similar to the case last cited is the case of Dunbar v. Rawles, 28 Ind. 225 In the ease of Bradshaw v. Warner, 54 Ind. 58, the plaintiffs had sold a safe to Wolf & Co., but the title was
The case of Herring v. Hoppock, 15 N. Y. 409, was the case of a conditional sale of a safe, very much like the case last cited. The plaintiff" had conditionally sold the safe, or bargained it, to Brooks &' Hopkins, but the title was not to pass until it was paid for. The shei’iff levied upon and sold the safe as the property of Brooks & Hopkins, and he was held liable to the plaintiff therefor. See, also, the case of Ballard v. Burgett, 40 N. Y. 314.
In the case of Hirschorn v. Canney, 98 Mass. 149, the substance of which is stated in Bradshaw v. Warner, supra, it seems to us there was as much ground for an estoppel as in the case before us.
We will notice one more case, and then close this opinion. In Hart v. Carpenter, 24 Conn. 427, the plaintiff" was the owner of a cow, the value of which he sought to recover in the action; and, by an instrument in writing, he agreed with one Bebee that the latter should take her into his possession, keep and fodder her, paying himself therefor by the milk she should yield; and, if at any time within four months, or at the expiration of that time, he should pay for her thirty-five dollars, she was to belong to him;' otherwise he was to return her, in good condition, to the plaintiff. Bebee took the cow under this
The petition for a rehearing is overruled.