38 Mich. 475 | Mich. | 1878
The plaintiffs replevied from the defendant a paneling machine, and the question in controversy related to the ownership of this machine, at the time the suit was brought. The plaintiff gave evidence of having purchased it of one Bice, through John Warren his agent, and also of having purchased the right to manufacture and use machines of the kind in the counties of Genesee, Saginaw and Bay, under the letters patent which had been issued therefor. A contract between the plaintiff of the first part and John Warren and Lester Cross of the second part was then proved,
The defense was that the machine was the property of Warren, and had been seized by the defendant as sheriff on an attachment issued against Warren in favor of one Roberts. The evidence of Roberts was put in that while Warren was at Flint in possession of the machine, he, Roberts, supposing him to be the owner thereof, trusted him for board to the sum of four hundred dollars and upwards, to recover which the attachment suit was instituted. The defendant then offered, to prove by several witnesses that while Warren thus had the machine in possession he represented himself to be the owner thereof. This evidence was objected to, but received by the court, and the witness Roberts and one Howland testified to such representations. There was also some evidence that Warren once spoke of the machine as “his machine” in the presence of Leavitt, the president of the plaintiff, and of Roberts, but Leavitt denied ever hearing such a remark. When the evidence was in, plaintiff requested the court to submit to the jury the following special questions:
1. Did the plaintiff purchase the machine of Rice?
2. Did the plaintiff ever sell the machine to any one, and if so, to whom?
3. Did Warren have the machine in question at Flint, under and by virtue of the contract of the plaintiff with Warren and Rice?
The ■ court declined to submit these questions, and proceeded to instruct the jury among other things that if they should find that Leavitt, the president of the plaintiff, was in Flint and heard Warren say, in the
I. In support of the admission of Warren’s declarations that he was owner of the machine, our attention is directed to those cases in which the declarations of one in possession of land when they are made, are permitted to be proved in a suit to which one who subsequently sueGeeds to his right is a party. Such cases were considered at some length in the case of Cook v. Knowles, ante, p. 316, and we shall not review them here. In general such declarations can only be received in disparagement of the party’s title; not in support of it; they may be shown to characterize a possession and thus make out an adverse holding, because for this purpose they would be a part of the res gestee-, but they are never received as evidence of title in favor of the party making them. It is true that the declarations of an agent, when acting within the scope of his agency, and when made in connection with some transaction as such, are receivable, as part of the res gestee, but it would be extremely dangerous to hold that the mere possession of chattels by an agent would empower him to admit away the title of his principal. No authority sanctions such a doctrine, and Turner v. Belden, 9 Mo., 797 and Russell v. Clark, 38 Me., 332, which are cited for the plaintiff are to the contrary.
II. If the application by the court of the doctrine of estoppel to the case had been correct, the submission to the jury of the special questions would have been properly refused. We have several times held that where
The general doctrine of estoppel in pais is familiar. If one maintain silence when in conscience he ought to speak, the equity of the law will debar him from speaking when in conscience he ought to remain silent. In Dann v. Cudney, 13 Mich., 239, the doctrine was applied to a wife who had, without objection, permitted her husband to receive payment for her horse which he had wrongfully disposed of as his own. ' The sale was an assertion of his ownership, and if she proposed to dispute this, good faith required that she should do so before the purchaser had parted with his money provided she had the opportunity. She did have the opportunity in that case, but failed to embrace it, and the purchaser in reliance upon her silence completed the purchase. But there is no analogous state of facts in this case.
The case here is that Leavitt, the president of the corporation owning the machine, hears Warren, its agent, speak of the machine as his own, and does not interpose and deny the fact. The evidence does not indicate that the remark of Warren was anything more than a casual remark, such as an agent in possession of property might naturally make without any purpose to assert a title in himself. There is nothing strange or unusual in an agent or clerk, intrusted with property to manage or sell, speaking of it as “mine,” and the owner if pres
In this case Leavitt was not called upon to put Roberts on his guard, because Roberts was not dealing with the property or proposing to do so. The conscience of Leavitt was therefore untouched in the case, and the bad faith of his subsequently asserting title for the corporation is not made out. But neither does it appear that Roberts subsequently acted in reliance upon Warren’s ownership. No one testifies that Warren was trusted on the faith of this undisputed allegation or statement that the property was his, nor do we find any action predicated upon it until the levy of execution. It is not claimed that any estoppel could arise from this lévy: the mere levy can never put' a title in the judgment debtor, by estoppel or otherwise.
The case, it is manifest, is not brought within the principles of the law of estoppel as previously laid down in this court. Graydon v. Church, 7 Mich., 36; Vinton v. Peck, 14 Mich., 287; Truesdail v. Ward, 24 Mich., 117. In support of the views we take of the facts of this case we refer to Traun v. Keiffer, 31 Ala., 136; Bragg v. Boston &c. R. R. Co., 9 Allen, 54; Mc Dermott v. Barnum, 16 Mo., 114.
The judgment must be reversed, with costs, and a new trial ordered.
