Cady v. Owen

Impeachment Estoppel. Exceptions. The acts of a witnesss, and also his silence, where good faith requires a disclosure of his knowledge, when such acts and such knowledge are inconsistent with his testimony, may be given in evidence for the purpose Of affecting his credibility. If one stands by and sees his own property sold by another, or dealt with by another, to or with third persons, he is estopped from setting up his own title against persons purchasing, or giving credit upon it, even though his own conduct result from mere carelessness or negligence, and with no real purpose to defraud-. Upon the coming in of the jury disagreed, counsel for the first time requested the court to administer certain instructions; it was held that the court would be justified in disregarding the request. The rule of practice requires that any special requests to charge the jui-y should be presented to the court at the opening of the argument on behalf of the party making the request.

Trover for certain property known as “ Kane’s Arctic Expedition,” consisting of three sections of paintings, on canvass. Plea the general issue and trial by jury, Windsor County, December Term, 1860, Barrett, J., presiding. The plaintiff’s evidence tended to prove, that, in November, 1858, he was the owner of the property described in this declaration, and that, as such owner, he sold an undivided half of. the property to Alonzo C. Moore, under an agreement that the title to the property should remain in him until paid for •, which contract was afterwards reduced to writing, and the writing was produced in evidence, dated Feb. 4,1859. The evidence further tended to prove that the plaintiff sold the remaining undivided half of the property to one Reyminton, deceased, since the sale; and that the defendant, as constable, afterwards attached the undivided half of the property which the defendant had sold to Moore, upon a writ of attachment in favor of the administrator of said Reyminton against Moore, and subsequently sold the same on execution in favor of said administrator. The defendant introduced testimony tending to prove that the sale -from the plaintiff to Moore was not conditional, but abso- - lute, and among other testimony, the defendant was called as a witness, and testified that when he attached the property, Alonzo C. Moore, who had been examined as a witness by the plaintiff, and had testified that the sale was conditional, was present, and-said that his father owned the property. Said Moore, bn his cross examination, having-denied it, the defendant offered to prove that Alonzo C. Moore did not, on that occasion, say that the plaintiff owned the property, or mention the plaintiff’s name in connection with the property, to which the plaintiff objected ; but the objection was overruled, and the defendant so testified, to the admission of which testimony the plaintiff excepted. The defendant insisted that even if the sale were conditional, as claimed by the plaintiff, yet the plaintiff was estopped from asserting this claim ; and upon this point-the defendant gave evidence tending to prove that the plaintiff was at Chester at the time of the sale to Reyminton, and that Moore was also there ; that negotiations took place between the plaintiff and Reyminton, in respect to Reyminton’s making the purchase ; that the plaintiff, on that occasion, and during the negotiation, said that he owned an undivided half of the property, and that Moore owned the other half; that Reyminton objected to making a trade for the property, and taking a stranger for a partner ; that he enquired as to Moore’s responsiblity, and was answered by the plaintiff that he was responsible, and was a fine young man, of good habits, and had property in Bethel, and that nothing was said that Moore bought the property conditionally, and had not paid for it; that a trade was then effected between them, and the plaintiff gave to Reyminton a bill of sale of an undivided half of the property, in which Moore is described as owning the other half, which bill of sale was d_ated February 3, 1859; that after the sale, and within a very short time, Reyminton, who was a merchant tailor, furnished a suit of clothes to Moore upon credit, and that upon that account and other deal the suit was predicated in favor of Reyminton’s administrator against Moore, in- which the defendant, as an officer, made the attachment and sale in question. The evidence tended to show that Moore was wholly destitute of property, and insolvent at the time of the trade between Reyminton and the plaintiff, and that the plaintiff knew it. The court charged the jury that if the plaintiff represented to Reyminton that Moore was the absolute owner of the undivided half of the panorama, and he knew, or had good reason to believe, that Reyminton was relying on that fact as the ground of credit to be given to Moore by Reyminton for the goods sold to him, and Reyminton did rely on the fact as thus represented, and by reason of siieh reliance gave credit to Moore for the goods sold to him, the plaintiff could not now be permitted to deny the truth of' such representations, and hold the undivided half of the panorama, as against the attachment; that in order to constitute an e stoppel, as claimed in behalf of the defendant, the jury must find from the evidence the representation to have been made as is claimed by the defendant; that the plaintiff knew, or had good reason to believe, that Reyminton was relying on this fact being as thus represented, as the ground of the credit that Rey' minton was about to give to Moore for goods to be sold to him ; that in selling the goods to Moore and giving the credit on which the property in question was attached, Reyminton did it in reliance upon the truth of such representations made by the plaintiff, — so that now to permit the plaintiff to claim and hold this property against the attachment on the debt of Reyminton against Moore, would be in bad faith, and operate as a fraud on Reyminton. The court charged the jury in all other respects required by the case as it stood upon the evidence. No exception was taken to the charge, when the case was submitted to the jury. The jury retired for consultation and to make up their verdict. ■ After-wards, without having agreed, they came into court, and through their foreman stated to the court that the jurors were in some disagreement as to what the court charged on the subject of the estoppel claimed by the defendant, and wished to have the charge on that subject repeated. Whereupon the court restated the instructions as above set forth, with some illustrations to make them understood and to show their application. Having so done, the court was requested by the plaintiff’s counsel to instruct the jury that in order to have the representations of the plaintiff operate as an estoppel, the jury must find that they were made with the fraudulent intent on his part to deceive and mislead said Reyminton. The court declined so to do. To which the plaintiff’s counsel took exceptions. The jury returned a verdict for the defendant.