Heyn v. O'Hagen

• Citation: 60 Mich. 150,26 N.W. 861
• Parties: HEYN v. O'HAGEN.
• Decision Date: 17 February 1886
• Court: Michigan Supreme Court

26 N.W. 861

60 Mich. 150

HEYN v. O'HAGEN.

Supreme Court of Michigan

February 17, 1886

Error to Marquette.

Hayden & Young, for plaintiff.

F.O. Clark, for defendant and appellant.

MORSE J.

The plaintiff brought suit in assumpsit, in justice court, against the defendant, and declared upon the common count for goods sold and delivered. The defense was the general issue. The plaintiff recovered, and on appeal to the circuit the case was tried before the court, without a jury, who made a written finding of facts and his conclusions of law thereon as follows: (1) On August 19, 1884, a shoemaker, living in Marquette, known to plaintiff as such and seen by plaintiff once before in a shop at Marquette once carried on by defendant, and who represented to plaintiff that he was in the employ of defendant and represented defendant, applied to plaintiff, a dealer in leather, at Ishpeming, for certain goods which he wished to purchase for defendant, as he represented. Defendant had been engaged in the business at Marquette, and some time before this had purchased in person like goods of plaintiff. Plaintiff believed from the representations of the shoemaker, whose name is unknown to plaintiff, that he was the authorized agent of the defendant, permitted the supposed agent to make a selection of goods, which the shoemaker did, and on the same day plaintiff, who did not deliver the goods to the shoemaker, sent the goods by express, marked to defendant, at Marquette, as follows: "F. O'Hagen, Marquette Mich." Plaintiff also sent to defendant on the same day by mail, an invoice of the goods, directed to defendant, at Marquette. The amount was $25.17. On September 9th, following, the same shoemaker, in the same manner, purchased another bill of goods of plaintiff, amounting to $16.89, which were sent on the same day of purchase by express to defendant, at Marquette, the same as before, and an invoice of the same was mailed to defendant at the same time by the plaintiff, and was received by the defendant in the course of mail. Each bill was sold on 30 days' time. Defendant received the first invoice by mail three or four days after its date, but said nothing to plaintiff in objection to the charge therein or the sale implied thereby. Defendant had not authorized the shoemaker to make such purchase, did not receive the goods or use them, but suspected immediately on receiving the invoice by mail that this shoemaker, who was doing business in the shop formerly occupied by defendant, had ordered the goods in his name, and two or three days after the receipt of the invoice went to this person, asked him about it, found his suspicion true, and that this person had also obtained the goods which had been shipped to defendant. Defendant made no mention of these facts to plaintiff until he called on him for payment, though he found out some days before the purchase by the shoemaker of the second invoice. Plaintiff had no reason to suspect the true state of affairs until September 19th following, when he went to Marquette, and called in person with defendant at the shop of the shoemaker who had obtained the goods, supposing it to be defendant's shop, where plaintiff saw both invoices which he had mailed to defendant. The testimony is contradictory as to what took place between defendant and plaintiff at this time. I find that after the goods were shipped to defendant, and the first bill became due, plaintiff applied to defendant for payment; that at the suggestion of defendant both went to the shop of the man who had ordered the goods; that this man then paid the plaintiff $21; that both the invoices were at that time in the shop, and that the $21 were credited on the first invoice, and that defendant then told the plaintiff that he would see that he got the balance of the money, but forbade him from sending any more goods in that way.

The following is the law, as found by the circuit judge: (1) By failing to notify plaintiff of the true state of affairs after he had become fully informed thereof, under the circumstances of this case, defendant misled plaintiff to his injury, and is estopped by such conduct from taking advantage of the real want of authority in the shoemaker to make the purchases in question in his name. (2) Defendant by his conduct ratified the purchase. (3) Plaintiff is entitled to judgment against the defendant for such balance, amounting to the sum of $21.06, with interest at 7 per cent. from October 9, 1884.

The principle is well established "that if a man either by word or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not lawfully have been done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words, or to the fair inference to be drawn from his conduct." Cairncross v. Lorimer, 7 Jur. (N.S.) 149; Truesdail v. Ward, 24 Mich. 117, 134, and cases cited on page 135. But there can be no estoppel unless the plaintiff was induced to take some action in reliance upon the statement or conduct of the defendant which otherwise he would not have taken, and which operated to his prejudice. "Expenditures in litigation may as reasonably constitute the basis of an estoppel as any other expenditures." Meister v. Birney, 24 Mich. 435. The finding of facts shows that the plaintiff upon selling the first bill took the precaution to mail the invoice directly to defendant, and to send the goods by express directed to him. This invoice was received through the mail in due course, and within three or four days after its date, and defendant suspected immediately that this shoemaker, who was doing business in the shop formerly occupied by him, had ordered the goods in his name, and two or three days thereafter went to this person and asked him about it, and found his suspicion true; that is, that he had ordered the goods in his name, and also that this person had obtained the goods which had been shipped to him. Notwithstanding he had now become fully informed of the fact that this shoemaker had represented himself to the plaintiff to be the agent of defendant, and had ordered the goods for him or in his name, and knew that the goods were invoiced...