Converse v. Colton

• Citation: 49 Pa. 346
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 15 May 1865
• Parties: Converse <I>versus</I> Colton.

49 Pa. 346

Converse versus Colton.

Supreme Court of Pennsylvania.

May 15, 1865.

ERROR to the Common Pleas of Tioga county.

COPYRIGHT MATERIAL OMITTED

H. W. Williams for plaintiff.—The judgment in trover, set up by defendant as an estoppel on the trial of this case, was for a much less sum than the value of the logs claimed by plaintiff in that case. The evidence of J. F. Donaldson was offered for the purpose of explaining that the evidence before the arbitrators showed that but a small portion of the lumber was converted by defendant. The defendant's position was, that as an action of trover and conversion had been brought to recover for one hundred and fifty thousand feet of lumber, and a judgment had been obtained for the value of six thousand feet, it was not competent to show by evidence the ground of the recovery — the whole having been claimed in the narr., the plaintiff was estopped from recovering the value of the other one hundred and forty-four thousand feet upon the contract.

"Estoppel only includes parties or privies:" Whallon v. Scott, 10 Watts 11, 244. Here the parties were not the same. Between the defendant in this case and the defendant in the action of trover there was no privity. The first action was in tort, to recover the value of logs taken from the defendant in this case by a wrongdoer; while this was an action upon a contract for the non-delivery of the logs. Both actions could have been brought at the same time; and nothing but actual satisfaction of the plaintiff's claim or cause of action in one could have been set up as a bar to a recovery in the other. If the plaintiff had been beaten, and judgment rendered against him, in the action against Campbell, there would have been a judgment covering the claim set out in the narr. If Colton stands in a position to avail himself of the record in that action as an estoppel, why could he not have set up such a verdict as an estoppel?

That the record in the action of trover was evidence is admitted; but it is submitted that it has no other effect than to satisfy the plaintiff's claim pro tanto.

But the 5th point submitted to the court raises this question in another aspect. Converse bailed these logs to the defendant to be driven to the boom. Between them, the bailor and bailee, there was an express contract for their transportation. If the logs were taken from his possession by Campbell, and he prevented thereby from delivering them, he knew it. It was his duty to disclose the facts to his employer. If he neglected to do this, and, much more, if he suppressed the facts within his knowledge, contributing thereby to the defeat of the plaintiff, it is inequitable that he should be permitted to set up a judgment rendered comparatively fruitless by such neglect or suppression as a defence against his employer, when called upon for the performance of his contract.

By standing by at the trial of the action of trover, neglecting to communicate the facts he now sets up as defence, taking the witness stand, and by his evidence giving colour to the allegations of the defendant in that case, he practically asserted the truth of these allegations — induced the plaintiff to believe that his action, except as to a small portion of his claim, was misconceived, and that an appeal would be useless. He ought not therefore to be permitted to contradict what he there practically asserted.

"An estoppel rests on the principle that every man is presumed to speak and act according to the truth and fact of the case; and the law denies him the right to contradict such reasonable presumption:" Crowell v. McConkey, 5 Barr 168.

Henry C. Parsons and S. F. Wilson, for defendant.—It is submitted that the evidence of J. F. Donaldson was properly rejected.

1. He was one of the arbitrators in Converse v. Campbell, and it was proposed to show by him "the proof made by Campbell, defendant in said case."

Instead of showing the notes of counsel taken at the time, sustained by an oath, it was proposed to substitute the imperfect recollection of an arbitrator of the entire "proof" made before him in a particular case tried several years before.

In Schall v. Miller, 5 Whart. 162, the court, in commenting upon the rejection of a judge's notes, though he had testified that he thought they were correct though not full testimony, says: "If evidence for this purpose, I do not see how we could exclude any facts which appear on the face of the notes, from the beginning to the end of the term, if pertinent to issues. This would introduce a laxity into the practice which we are not disposed to countenance. It would be unsafe to extend the rule on this subject further than has been done in cases already adjudged."

2. It was not rebutting evidence. The defendant simply offered the record in Converse v. Campbell, and none of the evidence given on that trial. On what principle, then, could the plaintiff in rebuttal give the entire proof made by Campbell? The effect of the recovery in that case was simply a matter of law, and the defendant so offered the record. In any event, therefore, the offer of the plaintiff was irrelevant.

3. The counsel for the plaintiff requested the court to charge the jury on five points submitted.

Their first was affirmed, and the second, third, and fourth were also affirmed, "with the additional qualification that the judgment (Converse v. Campbell) was not only conclusive as to these logs for which a recovery was actually had, but also for those for which a recovery might have been had in that case," adopting the language used by Chief Justice Gibson, in Hess v. Heeble, 6 S. & R. 61. See also Garvin v. Dawson, 13 Id. 247; Alexander v. Stokley, 7 Id. 301; Mann v. Drexel, 2 Barr 210; Cabet v. Evans, 1 Casey 312; Logan v. Caffrey, 6 Id. 199.

4. Colton's testimony in Converse v. Campbell was not in evidence on...