41 N.H. 465 | N.H. | 1860
Tbe .testimony of tbe plaintiff, whether an agreement was made between him and Stephen Gale, was not properly a matter of opinion, but of fact, to which he might testify. The opinion of the witness, as to the effect of what was said and done, would be open to the objection taken by the defendant’s counsel; but whether an agreement was made, whether there was the consent of the two minds, is quite a different thing. Had he stated, in the first instance, that the parties made a line, set up boundaries, and agreed to it, there could have been no valid objection to it. In Eaton v. Rice, 8 N. H. 380, it was held that when the witness could not state the language used, he might be allowed to state that he understood the parties to agree to a line, — showing clearly that it is not to be regarded as the mere expression of an opinion. In the case before us, although the witness had previously stated what was said and done, it was properly within the discretion of the court to allow him to state in another form that they agreed to the line. Ordinarily, however, such a repetition would not be allowed, but in a case where the language was imperfectly remembered by the witness, it would come within the range of a sound judicial discretion, over which this court would exercise no control. 1 Gr. Ev., sec. 431; Furbash v. Goodwin, 25 N. H. 441.
The admission of the plaintiff’s testimony in respect to the iron hubs, as tending to show -where the line was, is
The plaintiff was properly allowed to explain his statements that his land extended no further south than the dropping of the eaves of his building. These statements had not the character of a contract; and there is nothing that would estop the plaintiff from showing to what he referred, and in what sense he used the words.
The court, we think, was right in declining to instruct the jury that the plaintiff, upon his own testimony, was estopped from maintaining his action. To constitute an equitable estoppel by standing by and seeing valuable improvements made upon the land by another, without objection, it must appear that the owner was fully aware of his own title, or, in other words, that he wilfully concealed it, and that the occupant, being ignorant of such title, was misled by such silent acquiescence, and induced thereby to change his position. The general doctrine is well stated by Lord Denman, in Pickard v. Sears, 6 A. & E. 460, in these words: “When one, by his words or conduct, wil-fully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” The same language is used by Baron Parke, in Freeman v. Cooke, 2 W. H. & G. 653, and the definition is adopted by Perley, C. J., in Davis v. Handy, 37 N. H. 75, and is fully indorsed by Story in his Commentaries on Equity (page 386), where he says, “ To justify the application of this cogent moral principle, it is indispensable that the party so standing by and concealing his rights, should be fully apprised of them, and should, by his conduct or gross negligence, encourage or influence the purchase; for, if he is wholly ignorant of his rights, or the purchaser knows them, or if his acts, or silence, or neg
If, then, the title of the plaintiff was equally open and apparent to both parties, and the defendant acted upon the judgment he had formed of the conflicting claims, and was not misled by the silence of the plaintiff, there could be no ground for contending that the plaintiff’s conduct was in the nature of an admission, upon which the defendant had acted. "Whether the defendant was so misled was a question for the jury ; and we think there was evidence upon which they might have found against the defendant on that point, — such as the fact that he claimed to the last a title to the land, independent of the estoppel; that he had entered upon the erection of his building in the plaintiff’s absence, and did not desist when informed of the plaintiff’s claim; together with the evidence tending to show that before commencing his work he was informed of the exchange between the plaintiff and Stephen Gale, the existence of the hubs, as marking the boundaries of the adjoining tract, and the probability that they might be found, and that, in fact, he was put upon inquiry as to the plaintiff’s title. Had the jury found that the defendant was not misled, but acted upon the judgment previously formed as to the boundaries, we see no reason why such finding should have been disturbed. Eorthereasons already assigned, we are of the opinion that there was no error in refusing to instruct the jury that unless notice was given before the brick work was finished, the plaintiff would be estopped.
The question whether notice was seasonably given to the defendant, was properly left to the jury. Involving, as
This point has been argued by the defendant’s counsel with much force and ingenuity, but we are unable to assent to his conclusions, or give countenance to the idea that although the defendant was put upon inquiry, and the means of knowledge were at his command, he might still forbear to make investigations, but go on with his erections, taking the risk that the plaintiff might or might not interfere. This we could not regard as good faith on the part of the defendant, nor can it be deemed that, under such circumstances, he was misled by the silence of the plaintiff. This would be well illustrated by a case that might arise on the entire removal or destruction of the erections in question, subsequent to this trial, as the fact is now suggested to be. Should the defendant undertake to rebuild upon the same ground, could it be justly said
The verdict in this case is for all the land described in the plaintiff’s writ, when the defendant has disclaimed a part, and the issue tried is only as to the residue. It is clearly a mistake, but not such as to affect the judgment,— the part for which judgment should be rendered being clearly shown in the issue, and it being manifest that the jury have found the issue for the plaintiff. That they have found something more than was submitted to them, or than was proved, will not necessarily vitiate the verdict. . It is clearly a case where the finding of the issue may be concluded out of the verdict, and that, as it is well settled, is sufficient, although the verdict is informal. Pettes v. Bing-ham, 10 N. H. 514; Allen v. Aldrich, 29 N. H. 75; Hodges v. Raymond, 9 Mass. 316; Commonwealth v. Fishblatt, 4 Met. 354; Hawkes v. Crofton, 2 Burr. 698; Porter v. Rummery, 10 Mass. 64; and so is Parker v. Brown, 15 N. H. 176, which fully recognizes the power to amend the verdict, as in this case; but the court decline to apply it there, for the reason that there was no description of the part to which the verdict should have been confined. So, if the jury find the issue, and something more, the latter may be rejected as surplusage. Patterson v. United States, 2 Wheat. 221. So, if a verdict is too large, the excess maybe remitted, if it can be ascertained by computation. Sanborn v. Emerson, 12 N. H. 58; Pierce v. Wood, 23 N. H. 519; Willard v. Stevens, 24 N. H. 271. So where betterments were erroneously awarded, it was held that they might be remitted. Wendell v. Moulton, 26 N. H. 41.
The result is, that on remitting, in the judgment in this
Judgment on the verdict.