Vilas v. Mason
25 Wis. 310
Wis.
1870
Check Treatment

Lead Opinion

PAINE, J.

Assuming that an amendment of tbe answer was necessary, in order to let in tbe proof of tbe defendant’s counterclaim, it was not an abuse of discretion for tbe court to allow it. . Where tbe amendment is one merely necessary to perfect a cause of action or defense defectively stated, it has been too often held proper to allow it upon tbe trial, upon just terms, to be longer an open question.' This would not be contro*319verted; but the appellant’s counsel contends that the amendment here allowed introduced an entirely new and different counterclaim from that originally set up. An examination fails to sustain this view. The original counterclaim. was, in substance, for the conversion of certain articles of property which the defendant claimed to own, and which, he alleged, the plaintiff had refused to allow him to remove when he surrendered possession of the hotel. The counterclaim of which proof was finally admitted, under the amendment, was of precisely the same conversion of the same articles. So it is impossible to say it was a new and different defense or counterclaim.

The ground upon which this was assumed was, that in the original answer the defendant had set up that he acquired title to these articles by purchase from some of the former lessees of the hotel, to whom they belonged. And as the amendment allowed set forth facts showing an estoppel as against the plaintiff, preventing him from questioning the defendant’s title under such alleged purchase, by reason of his having stood by at the time and seen the sale, without making any objection or claim of title in himself, it is insisted that this makes the counterclaim a new and different one. The utmost that could be said of it would be, that; it was alleging a different source of title in the defendant. Even if it were clearly so, that would not change the counterclaim. The essential fact was, that he had title; not whether he acquired it from one person or another. It was not necessary for him to set forth the origin of his title. It is not usual to do so, either in actions relating to real or those relating to personal property. Sometimes, where the controversy may be narrowed by more specific pleading, the source of title is disclosed. But usually there is a mere general allegation of ownership; and in this case it would have been sufficient, if the defendant had alleged, generally, that he owned the articles in *320question, and then set forth facts showing a conversion by the plaintiff. If, then, on the trial, he had proved a purchase from the former lessee, and the delivery of possession under it, and the plaintiff, to defeat ,the title thus derived, had offered proof of a paramount title in himself, the defendant might have rebutted such proof by showing that the plaintiff was estopped from asserting such paramount title, by reason of having stood by without asserting it at the time of the defendant’s purchase.

As it was, therefore, unnecessary to. set forth the source of the defendant’s title, if the pleader did set it forth incorrectly it was entirely proper, if necessary, to allow the essential allegation of title to be perfected by amendment according to the fact. It was no more a change of the counterclaim, than.it would be a change of the cause of action, if a plaintiff should sue for an injury to real estate, and unnecessarily allege that he purchased it from A., to allow him to amend and show, in fact, that it was purchased from B.

But even assuming that, where the source of title is unnecessarily alleged, it must be proved as laid, unless changed by amendment, I do not think any amendment was necessary here. I do not think there was any change here, even as to the alleged source of the defendant’s title. He originally alleged title through a purchase from the former lessee; it was only that title which he was, through the amendment, finally permitted to substantiate. It is true, that, to make it good, he was permitted to estop the plaintiff from asserting a paramount title; but that fact does not prevent it from still being true, that the title of the defendant was derived solely from his purchase from the former lessee. The estoppel arose out of, and takes effect through, that purchase. The real owner, standing by and seeing that purchase without asserting his own right, is estopped to deny that the sale conveyed a good title to the purchaser. It *321seems to me, therefore, that the proof of the facts constituting, the estoppel went merely in'support of the original allegation 'that the -defendant acquired title through a purchase from the former lessee. For, although the plaintiff may have been the real owner, and although the legal effect of the estoppel is to work a transfer of his title to the defendant, yet it does so only by giving full effect to the purchase from the former lessee, and preventing the plaintiff from questioning its validity. I think, therefore, that the facts showing the estoppel went merely to support the original allegation as to the source of title, and that the proof was admissible without any amendment. Upon this point I have given only my own views, the decision of the court being, that, assuming the necessity of an amendment, it was, for the reasons previously given, properly allowed.

The question then arises, whether the facts set forth as a counterclaim constitute any proper counterclaim in this action. The action is upon a contract for the breach of covenants in a lease. There were allegations and proof that the plaintiff told the defendant, that if the articles in controversy in the counterclaim were left in the hotel, he would pay for them whenever they “ should he adjudged, by suit or otherwise,” to belong to defendant. The question has occurred, whether, upon this agreement, the counterclaim could be sustained as one arising upon contract, and enforced in this action. Could the adjudication of title, which was made the condition of the promise, be procured for the first time in the very action on the promise itself? This question we have not found it necessary to determine, as we have come to the conclusion that the counterclaim may be sustained upon another ground.

The action was for a breach of the covenants in the lease of a hotel, t One of the alleged breaches was, that, instead of surrendering possession, the defendant had carried off sundry articles that belonged to, and were a *322part of, the hotel. It appeared that there was a dispute between the parties, at the time of the surrender, as to what the lessee was entitled to remove; or, in other words, as to what the covenant to surrender possession included. The plaintiff claimed that the defendant had carried off things which he ought to have surrendered. The defendant claimed that the plaintiff retained and refused to permit him to remove things to which he was entitled. This, we think, may fairly be said to be a cause of action which, according to the somewhat indefinite language of the statute, “arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim.” It grew directly out of a misunderstanding between the parties as to their respective rights under that contract. See Ainsworth v. Bowen, 9 Wis. 348.

It remains, then, to determine whether there was any error in the rulings. The appellant insists that the seventh and tenth instructions given by the court were erroneous. They were as follows : “Seventh. In relation to the property claimed in the counterclaim, I think, if you should find from the testimony that Butcher claimed that the articles, or any of them, belonged to him at the time of sale, and that the plaintiff assented to it, and that he sold them to defendant, or any of them, with the plaintiff’s knowledge and assent, the plaintiff cannot now claim such articles even as fixtures.” ' “ Tenth. If the jury believe, from the evidence, that, at the time of the purchase, and before it was completed, the plaintiff and defendant, together with Mr. Dutcher, went over the house, and the articles of property which Mr. Butcher claimed the right to sell to the defendant, and not to belong to the house, were pointed out, and the plaintiff made no claim to the same, and stood by and saw the defendant purchase them, the plaintiff is now estopped from setting up any claim to any of the property so pointed out.”

*323This seems to us a very clear and full statement of the facts sufficient to constitute an estoppel, and to he entirely applicable to the evidence in the case. The law-embodied in these instructions is nothing more or less than the general familiar proposition, that, where an owner of property stands by and sees a third party sell it as his own, without asserting his own title or giving the purchaser any notice' of it, he is estopped as against such purchaser from asserting it afterward. But the appellant’s counsel refers to the remark of the chief justice in Norton v. Kearny, 10 Wis. 453, to the effect, that an estoppel in pais happens where a party makes a statement or admission, either expressly or by implication, with the intention of influencing the conduct of another, and that other acts upon the confidence of such statement or admission, and will suffer injury if the party is permitted to deny it.” And he then claims that the instructions under consideration were erroneous in omitting to include this element of intention on the part of the plaintiff as one of the essential elements of an estoppel.

The language of the chief justice was natural enough, as applicable to the facts in that case, where the plaintiff sought to base an estoppel on an appraisal by one of the defendants, to which he was an entire stranger, and by which he was never influenced'. But it was never designed to supersede the old rule, that every man is presumed to intend the natural consequences of his own actions. And this rule would be superseded, if, in addition to the facts required by these instructions, it were held necessary to give any further proof of the party’s intention, to constitute an estoppel. Upon those facts, the law, acting upon the presumption that his intention is in accordance with his acts, creates the estoppel. And he could not be permitted to avoid it by raising any question as to what were his secret intentions.

*324,It may have been that the real truth was, that the plaintiff never clearly understood that Dutcher was assuming to sell these articles to the defendant. But the testimony of Butcher and the defendant would warrant the jury in finding that he did fully understand it. The instructions of the court clearly import that they must so find. And if that was true, — if he did go "over the house with Butcher and the defendant for the very purpose of settling beyond dispute what things Butcher had a right to sell, and these articles were pointed out as Butcher’s, and he sold them to the defendant, without objection from the plaintiff,— a plainer case of estoppel could not well be imagined. And it would be extraordinary indeed, if, upon such facts, it were necessary to present to the jury any distinct, separate question as to the plaintiff’s intention.

So, also, it was not necessary for these instructions to say expressly to the jury that they should find that the defendant was influenced by the silence and assent of the plaintiff, and" acted on the faith of it. The facts required to be found necessarily import that.

Nor can it be said that the sale had been consummated before this, and therefore there was no estoppel. It is true that Butcher and the defendant had fully agreed upon the terms, but no papers had been executed or delivered, and the whole thing was subject to the consent of the plaintiff, and before the final consummation of the bargain these interviews took place. And the instructions expressly require the jury to find that they occurred before the sale was completed.

The defendant’s statement, that the plaintiff never in his presence abandoned his claim to the annunciator, evidently means, only, that he never used any express words to that effect. It is clear that he did not intend by this statement, called out on cross-examination, to recall any portion of his former testimony in regard to the circumstances attending the sale. And if that was *325true, there was no need of any express abandonment of the plaintiff’s claim.

The only other question is, whether there was error in denying the motion for a new trial, on the ground that the verdict was against evidence. Upon this point I can readily say, that I could not have found the verdict which the jury did. They apparently allowed the plaintiff nothing, although it seems clear from the evidence that some things were taken away by the defendant which he had no right to take, and that there were some breaches of the covenants, for which damages to some extent ought to have been allowed. But, although it is probable that the jury allowed nothing for these things, we cannot say certainly that such was the case. There was a wide difference in the testimony as to the value of the annun-ciator claimed by the defendant. He himself swore - that it was worth four hundred dollars. The weight of testimony seems decidedly against any such conclusion; but as it, was a question of credibility as between the witnesses, we cannot say that it was not within the province of the jury to adopt his statement as a true one, if they believed it. If they did so, they may still have allowed the plaintiff considerable damages, which were deducted from the counterclaim, before the balance of the latter was fixed. The rule upon which this court acts upon this question is, that, where there is any construction of the testimony which the jury were at liberty to give, that sustained the verdict, and the court below has refused a new trial, this court will not interfere' upon the mere ground that the verdict is against evidence. That seems to be the case here. Though the verdict appears to be against the weight of evidence, yet there was evidence which the jury were at liberty to believe, and which, if they believed it, would sustain the finding. The judgment must be affirmed.

By the Court.• — Judgment affirmed.

A motion for a rehearing was disposed of at the January term, 1870, as follows:





Rehearing

PaiNE, J.

It is urged that a rehearing should be granted, upon the ground that the opinion already filed misapprehended the facts in assuming that the acts of the plaintiff, relied on as constituting a conversion, took place at the time of the expiration of the lease and the surrender of the premises. There was a misapprehension in that respect, as it appears that those acts took place about the 20th of September, whereas the lease did not expire until the first of October.

We have had some doubt whether the motion ought not tó be granted for this reason, but, after a careful examination, have come to the conclusion that this circumstance does not substantially vary the character of the facts, and ought not to affect the result already arrived at.

The question is, whether enough is stated to show a conversion by the plaintiff of the articles mentioned in the defendant’s counterclaim. The argument on the motion for a rehearing seems to assume, that if, at the expiration of the lease, when the lessee was about to exercise his right of removing such property as belonged to him, the lessor should claim certain articles attached to the premises as his own, and forbid the tenant to remove them, it would be a conversion. This there would seem to be no room to doubt. It would clearly be such a wrongful assumption of control over the property, and such an interference with the owner’s right, as would constitute a conversion. The only doubt that arises upon the point is, whether the same acts, occurring before the expiration of the lease, and while the tenant remains in the undisturbed possession of the premises, not attempting to exercise his right of removal, would also amount to a conversion. It may well be, that in general the assertion by one person of a claim to property in the undisturbed possession of another, even though accompanied by a forbiddance of its use, would not be a conversion. But, without *327attempting to settle any general rule upon the subject, we are of the opinion, that where a dispute arises between a landlord and tenant in respect to the ownership of articles, which, if they belong to the tenant with a right of removal, are personal property, but which, if they belong to the landlord, are fixtures and a part of the realty, and the landlord, just before the expiration of the lease, but contemplating that result, and with a view to affect the action of the tenant at such approaching expiration, claims title to such articles and forbids the tenant to remove them, and threatens him with an injunction if he attempts it, the tenant may, on surrendering the premises, leave the articles, and treat the acts' of the landlord as a conversion. The fact that these acts occurred a few days before the actual surrender of the premises is not material, so long as they were so near that event, and were intended and understood by both parties to have direct reference to it. A landlord claiming, such fixtures may.obtain an injunction against an outgoing tenant who threatens to remove them. Gibbons on the Law of Fixtures, p. 70 (11 Law Library). And to make such remedy effectual, he would have to obtain it before the tenant actually removed the fixtures. It is one of the instances where equity would interfere to prevent the threatened wrong. Such being the case, the landlord being in a position, by reason of the peculiar character of the property, to enforce his threat, if he will take the responsibility of forbidding the tenant to remove such articles at the expiration of a lease then about to expire, under threat of an injunction, this should fairly be regarded as such an assump- . tion of control- over the property, and such an interference with the tenant’s right, as to amount to a conversion. For, if the property, although consisting of fixtures, really belongs to the tenant, and he has the right of removal, a wrongful prevention of the exercise of that right is a conversion; for, as between landlord *328and tenant, it is personal property. Ford v. Cobb, 20 N. Y. 344; The State v. Bonham, 18 Ind. 231.

It is probable that counsel, in stating the counterclaim, designed to rely upon the alleged agreement which it discloses. But it sufficiently shows the facts constituting the wrongful interference with the right of the tenant. It alleges that the plaintiff asserted his own title, and forbade the defendant to remove the property ; and if, in law, this is sufficient to sustain an action for the tort, we must so hold, though stated with a view to show a different cause of action.

And it may fairly be doubted whether this alleged agreement was capable of any practical enforcement. The very condition of the promise of the plaintiff to pay for the property was, that the defendant should first obtain an adjudication that it belonged to him. The appellant’s counsel contended — and it would seem difficult to hold otherwise — that no action could be maintained on the promise, as such, without showing that such an adjudication had first been obtained. But such an adjudication could only be obtained in some action brought to assert the tenant’s right to the property ; and whenever, in such suit, he obtained an adjudication of title, he would also obtain the appropriate judgment for relief, which would supersede the necessity of any further action on the plaintiff’s promise.

This so-called agreement seems, therefore, to have amounted to nothing. It expressly refers the whole difficulty for adjustment to some suit to be brought by the tenant upon his original rights, wholly independent of this agreement itself. It does not profess to modify or enlarge the rights or obligations of either. It was as though one engaged in committing' a trespass, on being ordered to desist, should say : “ Let me alone, and when you recover a judgment against me for the damages, I will pay it.” The fair construction of it, therefore, is, that the parties contemplated that the tenant should *329resort to any action warranted by the facts to test Ms right to the property, and that an action for a conversion, in assuming control over it by the plaintiff, and forbidding the defendant to remove it, would be such an action. We have thus alluded to this agreement because, if it had furnished any new basis for the adjustment of the rights of the parties, in which their former rights had become merged, it might have been impossible to sustain the view we have taken of this counterclaim. But as it furnishes no such basis, as it expressly referred the whole matter to a suit, to stand or fall entirely independent of its provisions, it does not stand in the way of our conclusion, that, upon the facts, the defendant had a good cause of action for a conversion, and that, upon the grounds stated in the former opinion, it may be sustained as a counterclaim in this suit.

By the Court. — The motion for a rehearing is denied.