Lick v. Munro

• Decision Date: 10 June 1902
• Citation: 69 P. 285,8 Idaho 510
• Parties: LICK v. MUNRO, SHERIFF
• Court: Idaho Supreme Court

69 P. 285

8 Idaho 510

LICK v. MUNRO, SHERIFF

Supreme Court of Idaho

June 10, 1902

PERSONAL PROPERTY - OWNERSHIP - DECLARATIONS - ESTOPPEL.-One who repeatedly declares, immediately preceding the levy of an execution upon certain chattels, that he had sold the same to another person, which declarations are made known to the officer who levied said execution prior to its levy, is estopped from asserting ownership of said chattels, as against said sheriff, and the execution plaintiff.

(Syllabus by Quarles, C. J.)

APPEAL from District Court, Boise County.

Reversed and remanded, with instructions. Costs awarded to appellant.

H. L Fisher, for Appellant.

The facts are sufficiently stated in the opinion. One who represents another as the owner of personal property, and such representations are communicated to an officer, who relies and acts on them in making a levy, the party making the representations and declarations will be estopped to claim the property. (Mitchell v. Reed, 9 Cal. 204 70 Am. Dec. 647; Horn v. Cole, 51 N.H. 287, 12 Am Rep. 111; Barnhart v. Fulkerth, 90 Cal. 157, 27 P. 71; Vanneter v. Crossman, 42 Mich. 465, 4 N.W. 216; Hostler v. Hays, 3 Cal. 303.)

Karl Paine, for Respondent.

There is but one question in this case--Is the respondent estopped from claiming the wood, or the value thereof, which is the subject of this controversy? Unless the admissions it is admitted respondent made are sufficient to and do create an estoppel in pais, then there is no defense, and respondent must recover. (Greenleaf on Evidence, 16th ed., sec. 169, pp. 290-292.) "Estoppel in pais may be defined to be a right arising from acts, admissions or conduct which have induced a change of position in accordance with the real or apparent intention of the party against whom they are alleged." (Bigelow on Estoppel, 4th ed., 445; Bigelow on Estoppel, 4th ed., 544-552; Stevens v. Dennett, 51 N.H. 324; People v. Brown, 67 Ill. 435; Martin v. Zellerbach, 38 Cal. 300, 315, 99 Am. Dec. 365; Turnipseed v. Hudson, 50 Miss. 429, 19 Am. Rep. 15; May v. Gates, 137 Mass. 389, 392; Acton v. Dooley, 74 Mo. 63, 67; Hosford v. Johnson, 74 Ind. 479, 485.)

QUARLES, C. J. Sullivan, J., concurs. STOCKSLAGER, J., concurring in part and dissenting in part.

OPINION

QUARLES, C. J.

This action was commenced by the respondent, as plaintiff, in the probate court in and for Boise county, to recover damages against the appellant as sheriff of Boise county for the unlawful seizure under execution and sale of certain chattels, to wit, twenty-four cords of wood, valued at eighty-four dollars, and for damages for retention of same in the further sum of fifty dollars; and upon trial in said probate court a judgment was rendered in favor of the defendant, from which the respondent appealed to the district court, and upon a trial de novo in the district court judgment was rendered in favor of the respondent for the sum of sixty-nine dollars and sixty cents damages, and costs taxed at nine dollars and ten cents. Both parties expressly waived a jury trial in the district court. Appellant moved for a new trial on numerous grounds, which motion was denied, and the appeal is from an order denying a new trial, and from the judgment.

One of the errors assigned and relied upon is that the lower court erred in holding that the plaintiff was not estopped from claiming said cordwood by reason of declarations, made by him just immediately preceding the seizure of said cordwood by the sheriff, to the effect that he had sold the property, and that said wood was the property of one John Rost. Said wood was seized by the appellant, as sheriff of Boise county under an execution against John Rost. The admitted evidence in the case, and about which there is no conflict, is that within a few days of said seizure the respondent Lick stated to divers persons that he had sold said wood to the execution defendant, John Rost. The evidence also shows that said Rost had hauled a good portion of said wood from where it was cut to a point near Idaho City, from which latter point he was delivering it to customers. The respondent not only declared repeatedly that he had sold said wood to said Rost, but stated that he had done so at the price of one dollar and seventy-five cents per cord, and had also stated that he had sold it to said Rost because his wagon was not strong enough to haul same. The admitted evidence also shows that respondent, Lick, stated...