Parliman v. Young

• Decision Date: 23 December 1879
• Citation: 4 N.W. 139,2 Dakota 175
• Parties: Edwin Parliman, Respondent v. Jackson B. Young and another, Appellant.
• Court: North Dakota Supreme Court

4 N.W. 139

2 Dakota 175

Edwin Parliman, Respondent v. Jackson B. Young and another, Appellant.

Supreme Court of Territory of Dakota

December 23, 1879

KIDDER J.

This case comes to us on an appeal from the district court of Minnehaha county. It is an action to recover the possession of personal property, called replevin. The respondent, who was the plaintiff below, in his complaint alleges that he was lawfully possessed of the horse and other property therein named. The answer of the appellants denies this, and says one J. A. Wilson was the owner of said property, and had mortgaged the same to them, and the mortgagor being in default on the mortgage they had taken possession of the property for the purpose of foreclosing it. On this issue the case was tried by a jury.

The respondent introduced testimony tending to prove that on the twenty-sixth day of September, 1879, he bought two horses and other property of one Ray, (one of said horses has since died,) and took possession of the same in Al. Peck's livery barn, and then and there delivered them to said Peck to keep for him, and that thereafter he agreed to pay said Peck for their keeping.

The appellants introduced testimony tending to prove that said Ray, on the same twenty-sixth day of September, sold said horses to said Wilson, gave him a bill of sale thereof--which was written by the respondent--and delivered the same to Wilson, who took possession of them; that on the next day Mr Wilson, for a valuable consideration, mortgaged said horses to the appellants. The bill of sale and the mortgage were introduced in evidence by the appellants without objection. The jury returned a verdict for the respondent.

Several exceptions were taken during the trial below by the appellants, but the arguments of counsel have been mainly confined to three of them First. The appellants, on the trial, introduced as a witness on their part J. B. Young, one of the appellants, and offered to prove by him that, at the time of the execution of the mortgage by Wilson, he, the defendant, went with Wilson to Peck's barn, and that Peck there and then stated to the defendant that the property in controversy was the property of Wilson, and that he was keeping it for Wilson, and that said Peck had the property in his possession in said barn at the time, and that this was the same property sold and turned over by Ray to Wilson.

To the admission of which the respondent excepted. The court sustained the exception, and the appellants excepted to the ruling of the court.

They then offered to prove by the same witness "that" (the actual possession of the property being in Peck, as livery stable keeper, he boarding the horses) "Peck represented to Young, upon inquiry by Young as to the ownership of the property, that J. A. Wilson was the owner." To the admission of which the respondent objected. The court sustained the objection, and the appellants excepted.

Was this testimony properly excluded? The arguments of the counsel for the appellants seem to be made upon the ground that Peck was the agent of the respondent, and therefore what he said to Young about the property when he showed it to him is competent evidence against the respondent, and Mr Young should have been permitted to testify to it.

Now, with due deference to the learned counsel of the appellants, we are not able to find any evidence in the case which tends to prove that Peck was the agent of the respondent. If the evidence proves anything it makes him thebailee of the respondent. He was merely boarding the horses as a livery stable man, and for which the respondent was to pay him a compensation. He was only the temporary custodian of them.

The court properly excluded the testimony. 2 Kent, 566; 18 Iowa, 90; 27 Wis. 261. The evidence coming from Young was not the best. Mr. Peck, for aught we know, as appears in the case, should and could have been called. It is elementary that the best evidence should be employed of which the case, in its nature, is susceptible. In requiring the production of the best evidence it is meant that no evidence shall be received which is merely substitutional in its nature, so long as the original evidence can be had. 1.

Greenleaf Ev. §. 82. This rule, so far as we know, has not been changed.

Again, it is found indispensible, as a test of truth, and to the proper administration of justice, that every living witness should, if possible, be subject to the ordeal of a cross examination, that it may appear what were his powers of perception, his opportunities for observation, his attentiveness in observing, the strength of his recollection, and his disposition to speak the truth. But testimony from the relation of third person, even where the information is known, can not be subjected to this test, nor is it often possible to ascertain through whom, or how many persons, the narrative has been transmitted, from the original witness of the fact. It is this which constitutes that sort of second-hand evidence termed hearsay. Section 99, and cases there cited.

Second. There was a conflict of testimony as to the cause of the giving the bill of sale; but it was agreed between the parties that, at the time of the purchase of the property, Mr. Wilson owed the respondent $300, and that he paid Ray in part for said property $25, and the balance was paid in notes executed by both Wilson and the respondent.

After the evidence was concluded the respondent asked the court to give each of the following instructions to the jury, which the court refused as to each instruction, to which rulings the respondent excepted.

"1. It is a general rule of law that, whatever a man's real intentions may be, if he manifests an intention to another party so as to induce the latter to act upon it in making a contract, he will be estopped from denying that such was his real intention; he will be bound by the intention so manifested.

2. A man cannot so deal with his property as to permit the practice of a fraud upon innocent third parties; and although he be the real owner of an article of personal property, yet if he so clothes another with the indications of ownership that such other person may deal with the property as his own, as by selling or mortgaging the property to an innocent purchaser or mortgagee, then such innocent purchaser or mortgagee will be protected in dealing with the apparent owner, and the real owner will be estopped to deny the rights acquired by such purchaser or mortgagee.

3. The jury are instructed on behalf of the defendants that when a contract is made by and between parties, as in this case, and the final disposition and consummation of the transaction is merged in writing, all the previous conversations are of no account and the intention of the parties is merged in the written instrument.

4. If a man with knowledge suffers another to mortgage or sell his property, or so clothes another with the evidences of ownership that he may do such a thing, he is estopped from denying the rights of such innocent mortgagee or purchaser.

5. The jury are further instructed that although they may believe from evidence that the property in question was, in fact, sold by Ray, to the plaintiff, yet if they also believe that at the time of making such sale, or at any time afterwards, and before the execution of the chattel mortgage introduced in evidence, the plantiff wrote in his own handwriting the bill of sale offered in evidence, and that Ray executed the bill of sale in plaintiff's presence, and with his knowledge, and delivered the same to Wilson in plaintiff's presence, without any protest being made by plaintiff against such delivery, and that said plaintiff permitted said bill of sale to remain in the possession of Wilson until after said chattel mortgage was executed, and if they also believe that at the time said mortgage was executed the property in question was not in the actual possession of the plaintiff, but was in the possession of Albert H. Peck, as bailee, and the defendants, relying upon said bill of sale and upon the credit of said property, loaned to Wilson the sum of money mentioned in said chattel mortgage, and received the said chattel mortgage as security for said loan in good faith, and with no knowledge that the plaintiff had or claimed any interest in or title to said property, then their verdict must be for the defendants.

6. If the jury believe from the evidence that one Ray made a bill of sale of the property in controversy, conveying it to J. A. Wilson, and that it was done with the consent of Parliman, the plaintiff; and if you further believe that the defendants, Young & Co., were induced to loan money and take a mortgage of Wilson on said property, by reason of such apparent title in Wilson, then Parliman is estopped from questioning the validity of such mortgage of Wilson to Young & Co."

From the record it does not appear that the attention of the court, nor the counsel for the respondent, was drawn on the trial to the question of estoppel, which has figured so largely in the argument of this case. This question seems to have been sprung after the evidence was submitted to the jury.

The evidence in the case which would tend to prove an estoppel was legitimate, so far as the issue was concerned, which was tendered by the complaint and not by the answer; and from the pleadings no trier could imagine that such a question would...