42 Iowa 113 | Iowa | 1875
The court instructed the jury as follows:
“2. If you find from the evidence that Elizabeth White was, at the time the sheriff seized the property in controversy, the owner of said property, you should find for her, unless you find for the defendants on the second and third divisions of intervenor’s answer, as instructed in the next two instructions given at the request of the defendants.
“ 3. If you believe from the evidence that the plaintiff held out H. R. Grape as the owner of, or as having full power of disposition over the said mill property in Hamburg, or the proceeds thereof, or permitted him to appear as such, or per*116 mitted him to conduct said milling business as he saw fit, and that he did so hold himself out as the owner thereof, and that TIawes, Babcock & Oo., gave him credit as such apparent owner, and that the proceeds of the property in controversy was applied to the payment of said debt, it was properly applied, and you should find for defendants.
“4. If you believe from the evidence that about the year 1871, H. R. Grape, as agent for plaintiff herein, was engaged in fitting up a mill in Hamburg for said plaintiff, with authority from said plaintiff to purchase machinery to be used in said mill, and that said Grape purchased in his own name, for said mill, of Hawes, Babcock & Co., and did not disclose his said agency to them, and that about March, 1873, said Hawes, Babcock & Co., obtained judgment against said Grape for the purchase price of said machinery, that execution issued upon said judgment, and that the property in question was levied upon and sold under said execution, and the proceeds applied to the payment of said execution and judgment, it was properly applied and your verdict should be for defendants.”
The court refused at the instance of plaintiff to instruct the jury as follows:
“If you find from the evidence that the property levied upon by the sheriff, and sued for in this action by the plaintiff, was the property of the plaintiff Elizabeth White, at the time the same was levied upon, your verdict will be for the plaintiff, for the value of the property, as shown by the evidence.” The errors assigned are the giving of the instructions above set out, and the refusal to give that asked by plaintiff.
The facts stated embrace every element of an estoppel in pais. In Lucas v. Hart, 5 Iowa, 420,it is said: “That where
II. From what has already been said, it follows that there was no error in refusing to give the instruction asked by plaintiff’. The mere fact that the property levied upon was the property of plaintiff does not, of necessity, entitle her to recover. The property may have been the plaintiff’s, and yet she may have permitted such a course of dealing respecting it, as to estop her from claiming it as against the intervenors.
For the error in giving the fourth instruction, the judgment is
Reversed.