67 So. 420 | Ala. | 1914
Lead Opinion
The B. F. Roden Grocery Company obtained a judgment against one Jim Millitello, in the Birmingham court of common pleas, an inferior court with the jurisdiction of a justice of the peace, upon which judgment execution was issued and levied upon certain property claimed by Y. Millitello ; and, upon such claim being interposed, a trial of the right of property was had in said court as provided by statute (section 6039 et seq. of the Code of 1907), resulting in judgment for the plaintiff, and the claim suit was removed by appeal to the city court of Birmingham, where the trial of the claim suit again resulted in judgment for the plaintiff, from which judgment the claimant prosecutes this appeal.
The cause was transferred to this court under the provisions of Acts of 1911, p. 449.
Plaintiff in the court below tendered what might be termed a “special issue” in the cause, to the effect that the property levied on as the- property of Jim Millitello, and which is claimed by Y. Millitello-, in this, that Y. Millitello is the same person as Jim Millitello-, and that the claimant, Y. Millitello, held himself out to plaintiff as being Jim Millitello, and purchased goods from plaintiff under that name, etc. This tender of issue was stricken by the court on motion.
The plaintiff then tendered the issue as provided by section 6040 of the Code, to the effect that the property levied upon as the property of Jim Millitello, and which is claimed by Y. Millitello, is the property of Jim Millitello, and is liable to the satisfaction of the said writ.
The claimant interposed, in addition to- a plea taking issue on the tender, two- special pleas, numbered 2 and
The following quotation, found in Jones v. Peebles, supra, is in point: “If a party has opportunity to plead an estoppel, and voluntarily omits to do m, and tenders or takes issue on the fact, he thus waives the estoppel, and commits the matter to' the jury, who are to find the truth. * ® * But if he have not the opportunity to show the estoppel by pleading, he may exhibit the matter thereof in evidence on the trial under any issue which involves the fact, and both the court and jury are bound thereby.”
Likewise apt is the following, from 16 Cyc. p. 806, cited above: “At common law an estoppel in pais need not be pleaded, but under the statutes of the various jurisdictions it is now almost universally necessary that it should be. If, however, the state of the case is such' that the estoppel cannot be pleaded, .it may be given in evidence, and in such case it will be equally conclusive as if it had been pleaded.”
In tbe case of Warren v. Liddell, 110 Ala. 232, 20 South. 89, it was said that: “Tbe form of issue on the contest * * * is largely within tbe discretion of the court, is not subject to demurrer, nor governed by tbe rules of pleading.”
We therefore conclude that while, as a general rule, estoppel as a defense must be specially pleaded, yet in tbe statutory trial of tbe right of property, where tbe form of tbe issue is largely within tbe discretion of the' court, and its substance is prescribed by tbe statute, tbe only proper issue is an affirmation by tbe plaintiff in tbe process that tbe property levied on is subject to tbe process, and a denial of tbe fact by tbe claimant, and that in such case, such an issue is sufficient to authorize tbe plaintiff to introduce evidence of every fact showing tbe property liable to tbe process, and tbe claimant to give evidence of every fact showing that there resides in him a superior right of property.
We are therefore of tbe opinion that no necessity existed for tbe special pleas of estoppel, and that error to a reversal cannot be predicated upon tbe ruling of the court sustaining tbe demurrer to said pleas.
For an understanding of tbe question it is necessary that this proffered testimony be given, which is found
The plaintiff offered testimony to the effect that claimant had, in dealing with it, represented that he was Jim Millitello, and that Jim Millitello and Y. Millitello were one and the same person.
Claimant offered testimony to- the effect that he was never known as or called Jim Millitello, so far as he knew, and had never so represented himself to plaintiff, and offered many witnesses to show that they knew and dealt with him by the name of Y. Millitello, and that name only. All the proof tends to show that the account sued upon was for merchandise sold in 1907, and the claimant claimed that the goods so purchased by him in 1907 from plaintiff had been by him paid for.
This record therefore discloses that the plaintiff in the claim suit trial was relying for recovery upon the fact that Jim Millitello and Y. Millitello were one and the same person, as the proof is without conflict that the property levied upon was the property of Y. Millitello. '
The testimony offered by the claimant shows that he went with counsel prepared to defend against the suit of- B. F. Roden Grocery Company v. Jim Millitello, should he be the party against whom the suit was brought. He had, in fact, by counsel, filed pleas in the cause, but they were stricken on motion of the plaintiff, for the reason that it was stated he was not the party sued.
An old authority has given a definition of estoppel, as follows: “An estoppel is where a man is concluded and forbidden by law to speak against his own act or deed; yea, even though it is to say the truth.” — 3 Words and Phrases, p. 2494.
In Caldwell v. Smith, 77 Ala. 165, it was said: “It was anciently said that estoppels were odious, because they stopped or closed one’s mouth from alleging the truth. * * * But, in modern times, the doctrine has certainly lost its odium, and may now be regarded as one of the ‘most important, useful, and just'agencies of the law.’ * * * It has its origin in moral duty and public policy; and its chief purpose is the promoting of common honesty, and the prevention of fraud. Where a fact has been asserted, or an admission made, through which an advantage has been derived from another, or upon the faith of which another has been induced to act to his prejudice, so that a denial of such assertion or admission would be a breach of good faith, the law precludes the party from repudiat
In Wheeler v. Armstrong, 164 Ala. 442, 51 South. 268, it was said: “It is true that under our practice a party is allowed to file inconsistent pleas and to- make inconsistent defenses in the same suit; but he'will never be allowed to invoke an action of the court, and receive a benefit by reason of such action, and then take advantage because of such action which he invoked and by which he profited.”
In the case of Jones v. McPhillips, 82 Ala. 102, 2 South. 468, the court, speaking through Chief Justice Stone, said: “The conduct of causes in court, and the results thereby attained, have sometimes been held as working an estoppel in pais, precluding the party, who thereby obtained a decision in his favor, from after-wards disputing or controverting the truth of the ground on which he had achieved his former success Such cases combine all the elements of estoppel set forth above. To allow a party who succeeds in defeating one action, on a seeming state of facts, though false, to shift his ground, and defeat a second action, by disproving the truth of his first defense, would be to sanction the grossest abuse and fraud.”
“A claim made or position taken in a former action or judicial proceeding will estop the party to make an inconsistent claim or take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party, where the parties are the same and the same questions are involved. Thus a party who has successfully interposed a defense or. objection
Indeed, the doctrine of estoppel has been applied to one who, as husband of the defendant, merely testified for the wife in support of her defense. The suit was for forcible entry and detainer against the wife. She defended on the ground that what was done was wholly the act of the husband, for which she was in no way responsible, and her defense was sustained by his testimony. In a subsequent suit for unlawful detainer of the same premises, brought against the husband, he was not permitted to defend, on the ground that he was acting as agent of the wife.- — Luling v. Sheppard, 112 Ala. 588, 21 South. 352. See, also, 16 Cyc. 801, 796.
Numerous definitions of estoppel in pais may be found in the above-cited volume of Words and Phrases, and it is unnecessary to cite further authorities or to give other quotations.
We are persuaded that the testimony offered, above set out, and which was excluded, was sufficient to create an estoppel against the plaintiff from setting up in the claim suit that Jim Millitello and V. Millitello were one and the same person. Indeed, counsel for appellee do not seem to insist that such would not ordinarily give rise to an estoppel, but the insistence seems to be that the claimant in such a case is not permitted to impeach the judgment recovered in the principal suit, and that such is the effect of the effort made by claimant.
The judgment against Jim Millitello stands unquestioned and unassailed. What the claimant does say and insist, however, is that the plaintiff, having represented in that proceeding that Jim Millitello and Y. Millitello were not one and the same person, cannot now be heard to say to the contrary, and insist that they are one and the same. The mere fact that the proof offered might be sufficient to avoid the judgment in a court of equity (a question we have not before us) would be a mere incident, and would in no- manner affect the question of estoppel here sought to be interposed.
We are therefore of the opinion that the authorities relied upon by counsel for appellee, do not at all militate against the conclusion here reached, and that the
For like reasons we think that claimant should have been allowed to show by the witness J. M. Bonner what was said by the court in reference to the matters testified to by the witness James A. Mitchell in the presence and hearing of the counsel for the plaintiff. We see no merit in the insistence for the affirmative charge for the claimant.
We have here treated the questions of prime importance in the case. The rulings of the trial court were not in accord with the conclusion we have here reached.
The judgment of the court below is reversed, and the canse is remanded.
Reversed and remanded.
Dissenting Opinion
(Dissenting.) — The record and opinion in this case have produced in my mind the strong impression that appellant, Millitello, by reason of the fact that he bought under one name and sold under another, has been allowed a privilege not enjoyed by the ordinary trader, whose name, like his personal identity, is fixed. It must be assumed that Jim Millitello and V. Millitello are one and the same person, for so appellant claimed in the trial of the original cause, nor was he denied the right to show that they were different persons on the trial of the right of property. The legal effect of his claim, and of the evidence he offered in support of it, was that, if he had not been misled by the attorney for the plaintiff in the original suit, he would have defeated a recovery, not by showing that