84 Me. 86 | Me. | 1891
Trover for a buckboard delivered by the plaintiff on June 25, 1887, to one Dorr and taking back therefor a Holmes note, of the same date, for $61, on fourteen months, duly recorded on July 29, 1887.
Within a few weeks (exact date in dispute) after his conditional purchase, Dorr exchanged the buckboard for a "cut-under” with one Penney, who, in September following, sold it to the defendant, who in June, 1888 — before the commencement of this action — sold it to one Smith.
The defense was put upon three grounds :
(1.) That the defendant’s vendor (Penney) purchased the buckboard some time before the Holmes note given therefor was recorded on July 29, which issue the jury found for the plaintiff.
While generally this court can.act on a bill of exceptions only in the form as made up and allowed at nisipmus (Hunter v. Heath, 76 Maine, 219), still when the stenographer’s report of the evidence is made a part of the bill of exceptions, it must control the allegations in the bill as to matters of fact, if there be a conflict between them. Harmon v. Harmon, 63 Maine, 437. Bills of exceptions are generally made at the heel of the session before the stenographer has extended his minutes and the report is made a part of the bill for the special purpose of correcting possible errors incident to the circumstances.
In the case at bar the reported evidence is made a part of the bill. By that it appears: (1,) That they did not make the trade in the presence of the plaintiff. (2,) Nor did they testify that Penney asked the plaintiff if he had any claim on the buckboard. (3,) Nor did they testify, as stated in the bill, but on the other hand, that, when Dorr, in the presence of Penney, informed the plaintiff that he himself " was talking of trading the buckboard for a cut-under with Penney,” that "the plaintiff did not say anything about it.”
Requested instructions not based upon the facts proved, are properly refused. Brackett v. Brewer, 71 Maine, 478; Grant v. Libbey, Id. 427 ; Pillsbury v. Sweet, 80 Maine, 392. The
Moreover, if the plaintiif did make the statement alleged in the bill of exceptions, the presiding justice might properly decline to give the peremptory instruction as requested. For notwithstanding the want of harmony among the authorities in their attempt to reduce the doctrine of equitable estoppel within, the limits of any particular formula, they all agree that, however well calculated the conduct of one may be to induce or influence another to act in a particular manner, no estoppel can arise unless he who alleges it was thereby induced or influenced to, and did in fact act. Titus v. Morse, 40 Maine, 348 ; Allen v. Goodnow, 71 Maine, 420; 2 Pom. Eq. § 812, and numerous cases in notes. That element is present in all the cases on equitable estoppel cited on the defendant’s brief. And that is a question of fact for the jury. Pickard v. Sears, 6 Ad. and E. 469; 1 Thomp. Tr. § 1109. So the meaning of words used in a conversation and what the parties intended thereby to express, is exclusively for the jury to determine; and it is not for the court to rule as a matter of law that they amount to an equitable estoppel. Brubaker v. Okeson, 36 Pa. St. 519. Moreover requested instructions must be complete and correct in their entirety, otherwise they are properly refused (Grand T. R. Co. v. Latham, 63 Maine, 177 ; Snow v. Penob. R. I. Co. 77 Maine, 55) as well as applicable to the facts proved. Duley v. Kelley, 74 Maine, 556.
(3.) Neither was the second requested instruction applicable to facts proved. The gravamen of the request is put upon the hypothesis, "that if, when Dorr pui’chased the buckboard of the the plaintiif, it was expressly agreed between them that the title should pass to Dorr, and the plaintiif should assert no claim, until maturity of the note and the condition was broken,” &c. But no such facts were proved. Dorr testified — "Nothing was said about the note, only I was to give him my note for the board.” To be sure, the plaintiif testifies that his custom Tvas "to let men have boards and take their notes and record them, and that he never interfered with men’s possession until the
The defendant takes exception to the rule of damages given by the presiding justice. Dorr gave two notes for the buckboard— one for $79, on four months, and the Holmes note for $61, on fourteen months. On October 24, 1887, $30, were paid on the former and a new note then given for the balance of $49. The presiding justice instructed the jury that, the plaintiff could recover, if anything, the amount due on the Holmes note and the new note — "provided such amount did not exceed the value of the buckboard at the time of the conversion.” We think the instruction was sufficiently favorable to the defendant. Brown v. Haynes, 52 Maine, 578 ; Grant v. King, 14 Vt. 367.
The defendant strenuously contends- that, on the issue of fact whether Dorr sold to Penney before or after the registration of the note, the finding that it was after, should be set aside as being against the manifest -weight of the evidence. A careful examination of the evidence leaves a strong impression in our minds that the preponderance of evidence is against the finding. But a jury of the vicinage, with better opportunities for finding the truth in this conflicting evidence, with the issue sharply made and fully presented, have found a verdict based upon the express testimony of three witnesses, which if true makes the verdict well grounded — though the testimony of several other witnesses tends to prove the contrary. In this connection the defendant lays great stress on the improbability of the truthfulness of the testimony of-the plaintiff' and one Leland that about the middle of August (two weeks after the note had been received back from the recording clerk) the defendant drove to the plaintiff’s premises with the buckboard and said he "wras
Motion and exceptions overruled.