Richards v. Shepherd, 49 So. 251

Richards v. Shepherd

49 So. 251 | Ala. | 1909

SAYRE, J.

This was a statutory action of detinue for the recovery of two iron balcony railings. The facts, which were proven without dispute, may he fairly epitomized as follows: Plaintiff (appellee) contracted with one Carson for th^ddition of an upper story to his storehouse. Carson was to furnish the materials and do the work at a fixed price. The defendant agreed with Carson to furnish the iron work, including four balcony rails, of which those sued for were two. The railings were delivered upon the sidewalk adjacent to the storehouse. Carson subsequently abandoned the uncompleted / work while indebted to the defendant, and it was completed by the plaintiff. There had been a controver*665sy between Oarson and defendant as to whether the defendant had agreed to attach the railings to the building. The cost of the railings had been included in an estimate of materials furnished, which plaintiff had paid to defendant, and had been charged to Carson’s account with Carson’s consent. Defendant afterwards agreed with plaintiff to put the railings in place on the building for a compensation of $5 each, to be paid by plaintiff, and did so put two of them. The two in suit had become bent or wraped while lying upon the sidewalk. The defendant sent a man and wagon for the bent railings. Plaintiff met the man on the sidewalk, and objected to their removal on the ground that they were his property, and informed the man that he could not have them without an understanding that they were to be straightened, returned, and put in place. Thereupon a conversation by telephone ensued between plaintiff and the foreman at defendant’s shop, in which plaintiff reiterated his claim and purpose. The foreman answered that defendant had instructed him to send for the railings, repair them, return them, and put them on the house. Plaintiff demanded a distinct understanding that the rails were to be returned and put up. The foreman agreed. Subsequently defendant admitted to plaintiff that he had gotten the railings ón a promise to return them, and that he had to do so in order to get possession of them, and that they were still in his possession.

“An estoppel is where a man is concluded by his own act or acceptance to say the truth.” — Edmondson v. Montague, 14 Ala. 370. Where a party, by his statements as to matters of fact or as to his intended abandonment of existing rights, designedly induces another to change his conduct or alter his condition in reliance upon them, he cannot be permitted to deny the truth of his statements, or enforce his rights against his declared inten*666tion of abandonment. — Insurance Co. v. Mowry, 96 U. S. 544, 24 L. Ed. 674. The delivery of tbe railings had vested title in Carson. It may be conceded that tbe title remained in him so that tbe result of tbe suit depended upon a bare first possession. But plaintiff’s claim to tbe property was equal in dignity and legal sanction to tbe defendant’s. Plaintiff was in a position to dispute tbe possession on terms of equality, to say tbe least. When the defendant induced plaintiff to surrender bis asserted right of possession on a promise to return tbe railings, so that plaintiff placed himself in a position distinctly less advantageous to bis claim of right in tbe property, be was, on tbe principle announced, thereafter estopped to deny plaintiff’s right of possession or to assert bis own.

Tbe objection to tbe conversation over tbe telephone was not well taken as for any lack of authority of tbe foreman to speak for the defendant. Tbe bill of exceptions shows that he was tbe foreman of tbe defendant’s shop, and tbe jury from that might well infer bis authority. Moreover, the defendant -subsequently acknowledged tbe foreman’s authority to promise, when be admitted that be bad gotten tbe railings on the promise; tbe foreman along having voiced tbe promise.

Tbe court might well have given tbe general affirmative charge for tbe plaintiff. Tbe other charge need.not, therefore, be considered.

Affirmed.

Dowdell, O. J., and Anderson and McClellan, JJ., concur.