Dann v. Cudney

• Decision Date: 02 May 1865
• Citation: 13 Mich. 239
• Court: Michigan Supreme Court
• Parties: Adoniram Dann v. Charlotte Cudney

13 Mich. 239

Adoniram Dann v. Charlotte Cudney

Supreme Court of Michigan

May 2, 1865

Heard April 27, 1865

Error to Saginaw circuit.

The action was trover for the conversion of a horse. Plea, the general issue with notice of special matter.

The facts sufficiently appear in the opinion.

Judgment reversed, with costs, and a new trial granted.

John B Dillingham, for plaintiff in error:

It must be inferred in this cause from the relations existing between the defendant in error and Alfred Cudney--who sold the horse in controversy--they being married to each other, that in such sale he was acting as her agent in making the same, and the evidence given in the court below tends to show that such agency did exist: 2 Kent's Com., 827, 828, 9th ed.; Story on Agency, § 255; 2 Greenleaf's Ev., § 67.

The defendant in error having full knowledge of the sale by her husband of this horse to John Sevenoakes, and suffering the horse to remain in possession of the vendee until he had fully paid for the same to her husband, she is now estopped from asserting her claim to the horse: Story on Agency §§ 127, 128, and note 1, and the cases above cited.

As to what is proper cross-examination, see People v Horton, 4 Mich. 82; Campau v. Dewey, 9 Mich. 382.

Declarations, to become part of the res gestoe and to be admitted in evidence on the trial, must have been made at the time the act was done, which they are supposed to characterize: 1 Greenleaf's Ev., § 108, and note 2; Carter v. Buchannon, 3 Kelly R., 513; Blood v. Rideout, 13 Met. 237; Boyden v. Burke, 14 How. 575.

H. Joslin, for defendant in error:

The rule is well settled that a witness cannot be cross-examined except as to facts and circumstances stated in the direct examination: 1 Greenleaf's Ev., § 433; 14 Peters 446; Cowen & Hill's Notes, p. 731.

The question asked of Charlotte Cudney was immaterial.

There was no evidence given on the direct examination of her previous knowledge of the sale, or the material facts thereof--no foundation for proving in any manner the plaintiff's subsequent ratification of the sale; hence the answer to the question could not tend to prove a ratification: 2 Greenleaf's Evidence, § 66; Owings v. Hull, 9 Pet. 607; Bell v. Cunningham, 8 Pet. 81; Courteen v. Touse, 1 Campbell 43, note.

There is no error in a charge which, though not strictly accurate, could not have misled the jury: People v. Scott, 6 Mich. 287.

Christiancy, J. Cooley, J. concurred. Martin, Ch. J. did not sit in this case. Campbell, J., dissenting.

OPINION

Christiancy J.:

This was an action of trover brought by defendant in error, who was a married woman, for the wrongful conversion of a horse. She had allowed her husband to use the horse, and he had driven him, with his own, from Canada to East Saginaw, about the 1st of November, 1862, where, within two days after, he sold this and the other horse to one John Sevenoakes, who, on the twelfth day of the same month, executed a chattel mortgage of the horse to Dann, the defendant below, under which Dann subsequently (but how soon does not appear) took possession, which is the conversion complained of.

The wife had never given her husband any previous authority to sell the horse; but being with her husband at East Saginaw, they both went, the next morning after the sale, to the house of Sevenoakes, and took breakfast; and while on the way to the house for that purpose, the husband, she says, told her he had sold the horse to Sevenoakes. She was then asked by the defendant whether, at any time between that morning and the time when the horse was taken on the chattel mortgage, she informed Sevenoakes that the horse was her property, and that her husband had no right to sell him.

This question was objected to on the part of the plaintiff and excluded by the court. The testimony already given by her tended strongly to show that she had a good opportunity to have given this notice to Sevenoakes the next morning after the sale, and her subsequent testimony, as well as that of Sevenoakes, tended also to show that this opportunity continued for weeks afterwards, and there was no evidence of a contrary tendency. Her own testimony also shows--and there seems to have been no dispute about the fact--that she also knew that Sevenoakes had not yet paid for the horse at the time when she was informed of the sale. Had she been informed not only of the sale of the horse, but that he had been paid for, she might not, perhaps, have been bound to any diligence in making known her rights; as her silence might not then lead the purchaser into any further act to his prejudice but, knowing that the husband had assumed to sell the horse as his own, under circumstances not calculated to excite any suspicion of his right, and that payment had not yet been made, she must also have known that her silence would still leave the purchaser under the belief that the horse belonged to the husband, and that he was at liberty to pay the husband, or deal with him as the owner. She could not, then, honestly neglect any fair or convenient opportunity to give early notice of her right, and of her husband's want of authority, unless she intended to be bound by any payment which might be made to her husband, or any other arrangement the purchaser might make with him in the mean time. She must have known that payment to the husband would be the natural result of her neglect to give the notice. And if, under such circumstances, she, having a good opportunity to give the notice, yet refrained from giving it until payment had been made to the husband, or the purchaser had parted with property on the faith of the husband's right, she should be bound by the acts of her husband, and suffer the consequences of the error into which her neglect had led the purchaser; and to allow her to recover the price again, after the purchaser had thus paid for it, would be to aid her...