Warder v. Baldwin

Estoppel in pais. (1) When mortgagee not estopped to assert Ms title by act of mortgagor in possession. (2) Estoppel must be pleaded. Oottcek: Damages. (3-4) When damages against officer levying on ivrong property merely nominal. 1. The owners and mortgagors of a reaper were in possession as such when the reaper was seized on a writ of replevin against them; but the right of possession, as against the plaintiff in the writ, was in the mortgagees. Said reaper was not in fact the one described in the writ, but the officer took it believing it to be so; the mortgagors in possession remained silent and did not correct his mistake; but the mortgagees, on learning of the seizure, notified him of their rights. Held, that they are not es-topped from asserting then- rights by action. 2. An estoppel must be pleaded to enable a defendant to avail himself of it upon the trial. [3. If an officer, as soon as he finds that he has by mistake levied upon the wrong property, tenders it back to the persons from whose possession he took it, leaves it on their premises, and thereafter asserts no claim to its possession, the damages recovered for the taking should be merely nominal, unless it is shown that the plaintiffs have suffered, by reason of the seizure, special damages apart from the mere value of the property.] [4. In such a case, if no tender be made before the commencement of an action for the taking, etc., yet if the officer then offers to return the property and pay the costs, and it appears that the seizure was made in good faith, and that the property, at the time of such offer, was in as good condition as when taken, the damages should still be merely nominal, except as stated in the foregoing proposition.]

APPEAL from the-Circuit Court for Dane County. The case is thus stated by Mr. Justice Tayloe: “The action was brought in a justice’s court to recover the value of a reaper which it is alleged that defendant unlawfully took from the possession of plaintiffs and converted to his own use. The complaint avers the value of the reaper to be $125, and claims damages to the amount of $150. It also alleges, by way of special damage, that whilst defendant detained the reaper in his possession, plaintiffs had an opportunity of selling it, and did in fact enter into an agreement for its sale, and that, by reason of the unlawful taking and holding of it by the defendant, they were unable to complete the sale, to their damage of $40. “The defendant’s amended answer is, first, a gen eral denial; second, that defendant, at the time mentioned, was sheriff of Dane county, and that one W. J. Ryan was one of his deputies; that a writ of replevin lawfully issued by a justice of the peace of said county in an action by one Dahling against Taylor and Towne, was placed in the hands of his said deputy; that by such writ he was commanded to seise the identical property described in the complaint herein as the property of said Dahling, the plaintiff in said replevin aetion; that by virtue of said writ his said deputy seized the property described in the complaint, and made due return thereof; that in such action of replevin judgment was rendered in favor of the said Dahling and against said Taylor and Towne, who appealed from such judgment to the circuit court; and that said deputy was ordered by said court to hold said property pending the perfecting of such appeal. The answer admits that at the time of the service of such writ of replevin by the defendant’s deputy, the property was in the possession of the plaintiffs in this action through their agents Taylor and Towne. As a third answer, the defendant alleges that, after his deputy had seized said property by virtue of said writ of replevin, he notified Dahling that he required him to give a bond of indemnity for his protection, and that Dahlmg failed to do so, and thereupon said deputy offered and tendered to Taylor and Towne, the agents of these plaintiffs, a release of said property in the same place as to location and in the same condition in which it was first seized under the warrant of replevin; and that said agents of the plaintiffs refused to take such surrender, and have continued so to do. Defendant then, by his answer, ‘ renews the offer to surrender all claim to said property, as made and tendered on the trial of-this action, he having at such time paid into court the taxable costs, and four cents as nominal damages.’ “ To understand clearly the last clause of the third defense, it must be understood that the amended answer was filed after the action had been appealed to. the circuit court; and that in the answer made by the defendant in the justice’s court, an offer was made by the defendant to return the property to the plaintiffs or their agents, and he paid into court the taxable costs, $1.75. It is.also proper to add that this action was commenced before the appeal had been perfected by Taylor and Towne in the replevin action set out in the answer. “Upon the trial, the appellants introduced evidence showing that at the time the defendant’s deputy seized the reaper by virtue of his writ of replevin in the case of Dahling v. Taylor and Towne, a firm of the name of Taylor Bros, owned the reaper in question; and that plaintiffs liad a chattel mortgage thereon, given to them by said Taylor Bros, to secure to them the payment of two promissory notes signed by Taylor Bros., amounting to $184.32. The chattel mortgage was in the usual form, allowing the mortgagors to retain possession until the mortgagees should take possession as provided in such mortgage. The provisions as to taking possession by the mortgagees were those usual in such mortgages, for the purpose of making sale of the mortgaged property to pay their debt; and also, if at any time the mortgagees should deem the property or debt insecure, they were authorized to take immediate possession, and sell the same to pay their debt. There does not appear to have been any question made upon the trial as to the ownership of the property by the plaintiffs under their chattel mortgage, or as to their right to the possession thereof as against the defendant or his deputy, at the time he seized the same under his writ of replevin, unless they are es-topped from setting up such ownership and right of possession by reason of the acts of the plaintiffs’ agents at the time said property was seized by the deputy of the defendant. It seems to have been conceded on the trial, that the reaper in question was not the one described in the writ of replevin under which the seizure was made, and that, by mistake of the deputy and Dahling, this reaper was seized instead of the one which. Dahling claimed to own, and for the seizure of which the writ was issued, and which was, in fact, in the possession of Taylor ■& Towne, or Taylor Bros., at the time the writ was issued and at the time the seizure was made.” The court gave, in substance, the following instructions to the jury: • “ If at the time of the service of the warrant of replevin in the action against Taylor and Towne, either of the defendants in that action was notified by the deputy sheriff of the specific property seized, and made no claim for it in behalf of these plaintiffs, but allowed the officer to proceed with the levy, and he did so proceed on the faith and understanding that the reaper in question was the Dahling reaper, and if the defendants in that action were the agents of these plaintiffs and did not correct the officer in that particular, then plaintiffs are estopped from disputing in this action the right to levy on that particular property. ... If the officer Ryan had levied on the Dahling machine, he would be protected in this action even though these plaintiffs, and not Dahling, had been the owners of that machine, because his writ of replevin commanded him to seize and hold that identical machine. It is true, the writ did not very specifically describe the machine for which that action was brought and for which the warrant was issued (the description being merely ‘ one Ohio Champion Reaper ’), but I think it described the machine sufficiently for such a writ. ... If plaintiffs knew at the time of the levy that the officer seized that as the Dahling machine, under circumstances which led him to suppose that it was such, then good faith would require them to state that it was not that machine. ... It appears that the officer, some time after this, upon hearing that there was some question about this being the machine, went to the agents of the plaintiffs and offered to deliver it up to them, and that they refused to take it. I do not think this is one of the cases in which a party wrongfully taking property can relieve himself by tendering it back. . . . But I do not think that the action of the defendant afterwards in taking the machine from the yard and placing it in the barn deprives him of the estoppel, if yon find one upon the other question to which I have referred; because I think he might very well then have moved it under shelter-in order to preserve it.” There was a verdict for the defendant; a new trial was refused; and plaintiffs appealed from a judgment on the verdict. The court erred in assuming that the case turned upon the question of estoppel, or that there was any evidence which warranted the application of the law of estoppel. Norton v. Kearney, 10 "Wis., 443; Gove v. White, 20 id., 425; Church v. Fairbrother, 38 Yt., 33, 693; Thrall v. Lathrop, 30 id., 317, 599; Moore v. Bowman, 47 N. EL, 494; Morton’s Adm’r v. Hoclc/don, 32 Me., 127; Oonnihan v. Thompson, 111 Mass., 270. See also Turner v. Coffin, 12 Allen, 401; Andrew v. Lyons, 11 id., 349; 93 U. S., 326; 96 id., 716; 38 Ill., 153; 71 id., 380; Odlin v. Gove, 41 N. H., 465. To charge a party with the consequences of a false impression on which another has acted, it must be shown that he knew the impression existed, and the result to which it would lead if not corrected. Herm. on Est., sec. 325; Liillv. Fpley, 32 Pa. St., 331. The party claiming the benefit of an equitable estoppel must not only be destitute of all actual knowledge of the true state of facts, but of all means of acquiring such knowledge. Gove v. White, 20 "Wis., 425. In an action of replevin, the officer executing the writ is not destitute of the means of knowledge as to the particular property to be seized, as the statute requires that the property shall be particularly described. R. S., sec. 3731; Wells on Rep., secs. 284-5, 292,169. If the writ does not give him this information, so as to be his guide, he should refuse to serve it. De Witt v. Morris, 13 Wend., 496; Núlty v. State, 17 Wis., 668; Wells on Rep., sec. 465. The object of the action being to recover the specific chattel, if the chattel cannot be described or identified the remedy fails. Ames v. Miss. Boom Go., 8 Minn., 472. The officer did not by the levy alone acquire the position or rights of a purchaser for value and without notice. Ford v. Smith, 27 Wis., 261. Neither can an officer who has converted property by a wrongful levy, relieve himself from liability by an offer to relinquish the levy. Livermore v. Northrup, 44 N. Y., 107; Caldwell v. Arnold, 8 Minn., 265.’ No statements or declarations on the part of Towne or Taylor would bind the plaintiffs, unless they were, at the time of mating the statements, the authorized agents of the plaintiffs, and doing some act within the scope of the agency. Wheeloch v. Town of Hardwich, 48 Yt., 19; Emmons v. Dowe, 2 Wis., 364; Grant v. Ba/rry, 9 Allen, 459; Davenport 0. Railway v. Gas Light Go., 43 Iowa, 301. An estoppel in pais may be created as effectually by the acts or conduct of the agent as by those of the principal. Em-mons v. Dov)e, 2 Wis., 322. The officer was shown to have acted, throughout, in good faith. Having learned that he had, perhaps, made a mistake, he tendered back the property in the same condition that it was in when he made the levy, and offered tp pay all damages incident to the taking; but such offer was refused. No special damages were proven at the trial. Under such circumstances the plaintiffs, even if they are not estopped by the conduct of their agents, could claim only nominal dain-.ages. And in such case, after trial and verdict for the defendant, the verdict will not be disturbed. Portman v. Elemish, 6 N. W. Rep., 265; Watson v. Van Meter, 43 Iowa, 76.