Delaney v. Cuming
| Decision Date | 10 May 1881 |
| Citation | 52 Wis. 266,8 N.W. 897 |
| Parties | DELANEY v. CUMING. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Grant county.
H. F. McNelly, for appellant.
Brooks & Dutcher, for respondent.
The learned circuit judge found as facts proven that the organ in question was the property of Maggie Cuming; that the plaintiff unjustly took and detained the same; also found the value of the property, damages for its detention, and that the defendant was entitled to the possession thereof. This finding is in substance the same as the verdict of the jury on the trial in the justice's court. There is unquestionably abundant testimony in the case to sustain it. It is unnecessary to remind counsel of the rule so often affirmed by this court, that the finding of the trial court upon questions of fact will not be disturbed unless it appears to be against the clear weight of testimony. The preponderance of evidence is certainly in support of the finding in this case, and therefore it will not be disturbed. But it is said by the plaintiff's counsel that Maggie Cuming was estopped from setting up title to, or claiming the organ, for the reason that she knew of the giving of the bill of sale to the plaintiff by her father, and did not assert her rights. The possession of the organ was not changed. Besides, it appears from the testimony of Maggie that she did object to her father giving the bill of sale, and this testimony is not overcome by that of the plaintiff, supported as it is by other evidence. But at all events there is no ground for assuming, upon the testimony, that Maggie stood by when this bill of sale was executed, and consented to it either by word or deed. Nor is there anything to show that she ever made any declarations in respect to the ownership of the organ which the plaintiff acted upon, and which should operate as an estoppel against her claiming it. She says she disclosed her title to the plaintiff before the execution of the bill of sale, but this the plaintiff denies, and states that he had no conversation with her upon the subject. But clearly the burden rested with him to show that she had made some admission about the ownership of the organ, upon the faith of which he had acted, or had done something which precluded her from afterwards claiming the property as her own. This he has entirely failed to show.
Under the decision in Timp v. Dockham, 32 Wis. 146, it was unnecessary for the defendant to plead title in...
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