Furst v. Pease

• Decision Date: 16 May 1910
• Citation: 97 Miss. 468,52 So. 257
• Court: Mississippi Supreme Court
• Parties: HIRAM A. FURST v. JACOB B. PEASE

52 So. 257

97 Miss. 468

HIRAM A. FURST v. JACOB B. PEASE

Supreme Court of Mississippi

May 16, 1910

March 1910

FROM the circuit court of Bolivar county, HON. JAMES M. CASHIN Judge.

Pease appellee, was plaintiff in the court below; Furst, appellant was defendant there. From a judgment for the plaintiff the defendant appealed to the supreme court. The facts, as stated by ANDERSON, J., are as follows:--

"The appellee sued the appellant in replevin before a justice of the peace of Bolivar county for a soda fountain and apparatus. Pease recovered judgment, and Furst appealed to the circuit court, where there was a trial had and judgment rendered in favor of the appellee, Pease, for the soda fountain; the court giving a peremptory charge to the jury to find a verdict for the plaintiff, Pease. From that judgment, Furst prosecutes an appeal to this court.

The defense sought to be made by Furst was that he only had in his possession one piece of the soda fountain, the carbonator, which he stated in his testimony he offered to deliver to Pease. The affidavit for replevin described each item of the property sued for and the value of the same. The writ of replevin and the officer's return on same describes it in the same manner. When the writ of replevin was levied, the defendant, Furst, executed a forthcoming bond for the property, in which it is described exactly as in the affidavit, writ, and return of the officer; and in the appeal bond to the circuit court, given by Furst, the same description of the property is set out. The forthcoming bond has the usual condition, by which Furst and his sureties obligate themselves to have the property forthcoming at the trial of the case."

Affirmed.

Fontaine & Jones, for appellant.

There is absolutely no evidence in this record to show that appellant had possession of any of the articles concerned except the carbonator; on the contrary the evidence conclusively shows that appellant did not have possession of the rest of the property; yet in the face of all this the trial court granted appellee a peremptory instruction on the question of liability.

This instruction was given on the sole ground that in making his forthcoming bond before the justice, appellant estopped himself from proving that he did not have possession of the property; but the vital fault of this theory is easily discernible by noting the language of the bond, and noting that the obligor nowhere admits possession. All he does is to bind himself to pay appellee three hundred and eighty dollars unless the obligor shall have the property before the court to satisfy its judgment.

As every man is bound to act and speak according to the truth of the case, the law presumes that he has done so, and will not allow him to contradict so reasonable a presumption. This is the foundation of the doctrine of estoppel. The truth is deemed to be shown by what estops. Herman on Estoppel, § 4.

Marcus L. Kaufman and Potter & Thomson, for appellee.

Learned counsel for appellant contends that there is no evidence in this record to show that appellant had possession of any of the articles except the carbonator. In this statement counsel for appellant is mistaken. In...