Quinlan v. Jones

• Decision Date: 04 June 1921
• Docket Number: 990
• Citation: 198 P. 352,27 Wyo. 410
• Parties: QUINLAN v. JONES
• Court: Wyoming Supreme Court

198 P. 352

27 Wyo. 410

QUINLAN v. JONES

No. 990

Supreme Court of Wyoming

June 4, 1921

APPEAL from the District Court, Fremont County; HON. CHAS.E. WINTER Judge.

Replevin action by Bessie M. Quinlan against Edith A. Jones and another. There was a judgment for defendants and plaintiff appeals.

Judgment affirmed and reversed.

J. M Hodgson, for Appellant.

The right of possession being found by the court to be in defendants the only judgment that could be rendered would be for the full value of the property, that being the proper measure of damages. If the value of the property repleved be of greater value that the debt, then the judgment may be for the amount of the judgment, debt, interest and costs. (Smith v. McGregeor, 10 O. St. 461; Jennings v Johnson, 17 Ohio 154; Sutcliffe v. Dohrman, 18 Ohio 181; Warner v. Mathews, 18 Illinois, 87; Thompson v. Scheif, 39 Minn. 102; 38 N.W. 801; Crutts v. Wray, 19 Neb. 581; 27 N.W. 634; Gates v. Parrott, 31 Neb. 581; 48 N.W. 387; Cross v. Borwn, 41 N.H. 283; Bell v. Bartlett, 7 N.H. 191; Whiting v. Levert, 2 Foster 10; Messer v. Bailey, 11 Foster 9.) A judgment for defendant in replevin, whose claim arises from a lien upon the property without finding the value of the property is not responsive and is contrary to law. (Griffith v. Richmond, 35 S.E. 620; Creighton v. Haythorne, 39 Neb. 526; 68 N.W. 934; Search v. Miller, 9 Neb. 25; Sauer v. Traeger, 57 N.W. 933; Meeker v. Johnson, 28 P. 542; Alderman v. Manchester, 47 Mich. 48; Stewart v. Taylor, 8 P. 605; Bell v. Bartlett, 7 N. Hamp. 178; Fitzpatrick v. Warren, 1 Penn. 541.) A judgment for the full amount of the mortgage indebtedness is erroneous as the judgment should not exceed the value of the property where defendant claims a special interest. (Sec. 5017 Comp. Stats.; Coe v. Peacock, 14 O. S. 187; Jennings v. Johnson, 17 Ohio 154; Williams v. Est, 2 O. St. 87-88; Thompson v. Scheid, 39 Minn. 102; Creighton v. Haythorne, 68 N.W. 934; Just v. Porter, 64 Mich. 565; 31 N.W. 444; Hunt v. Thompson, 19 Wyo. 523; 120 P. 180-184.) The essentials of an estoppel in pais are, (1) False representations or concealment of facts (2) Ignorance on the part of the person to whom the representation was made of the falsity of the representation; (3) destitute of means of acquiring such information. (Slaughter v. Gerson, 13 Wall 379; Commercial Natl. Bank v. Bemis, (Mass.) 58 N.E. 476; Rogers v. Dutton, 65 N.E. 56; Marine Bank of Buffalo v. Fiske, 71 N.E. 353; Hentz v. Miller, 94 N.Y. 64; Sneed v. Petty, 65 Tex. 490; Northwestern M. L. Inc. Co. v. Amerman, 119 Ill. 229; Blodgett v. Perry, 97 Mo. 263; 10 Am. St. Rep. 307; Deberry v. Wheeler, 128 Mo. 84; Hogan v. Peterson, (Wyo.) 52 P. 162-165.) An estoppel cannot arise from a promise as to future action. (Elliott v. Whitmore, 23 Utah 342; 65 P. 70; Richards v. Shepard, 159 Ala. 663; 49 So. 251; Banning v. Kreiter, 153 Cal. 33; 94 P. 246; Brightman v. Hicks, 108 Mass. 246; Langan v. Sankey, 7 N.W. 393; Starry v. Korab, 65 Iowa 257; 21 N.W. 600; Clanton v. Scruggs, (Ala.) 10 So. 757.) Estoppels are protective only to be invoked as shields and not as offensive weapons. (Phillipsburgh Bank v. Fulmer, 86 Am. Dec. 196; Payne v. Burnham, 62 N.Y. 71; Townsend, v. Todd, 47 Conn. 218; Campbell v. Nichols, 33 N.J.L. 281; Nelson v. Kelly, 91 Ala. 569; Adler v. Pin, 80 Ala. 351; Gjerstadadengen v. Hartzell, (N. D.) 81 Am. St. Rep. 582.) The judgment is erroneous in that it is an amount exceeding the value of the property taken. (5017 Comp. Stats. 1910. Smith v. McGregor, 10 O. St. 470; Jennings v. Johnson, 17 Ohio 155; Sutcliffe v. Dorman, 18 Ohio 181.) The judgment was excessive. (Coe v. Peacock, 14 O. St. 192.) There is a distinction between a full right of use and possession and a right under a special interest which obtains in fixing damages, (Thompson v. Scheid, 39 Minn. 102; 38 N.W. 801; Hunt v. Thompson, 19 Wyo. 523; 120 P. 121.) Interest may be allowed as compensation for lost use. (Cobbey on Replevin, 2 Ed. 885), or the value of the use may be recovered in lieu of interest. (3 Southern 559.) The judgment in this case is not supported by the pleadings or proofs and is therefore erroneous. (Black on Judgments, Sec. 242; Glenn v. Taussig, 51 Fed 409; Clement v. Yeats, 69 Mo. 623; Stix v. Mathews, 73 Mo. 96, 100; Sumner v. Rogers, 90 Mo. 324.) There must be deception and change of conduct to constitute estoppel in pais. (Davidson v. Young, 38 Ills. 152; Flower v. Elwood, 66 Ills. 447; Powell v. Rogers, 105 Ills. 318; Northwestern Ins. Co. v. Amerman, 119 Ill. 229); unauthorized representations of a husband concerning his wife's property creates no estoppel against her. (Hall v. Callahan, 66 Mo. 316; Caldwell v. Hart, 57 Miss. 596; Taylor v. Riley, 37 Kans. 90; 14 P. 476; Green v. Walker, 73 Wis. 548; 41 N.W. 543; Kirkman v. Bank, 77 N. Car. 394; Watson v. Hewitt, 45 Tex. 472.) A court of law will not relieve a party from the consequences of his own carelessness. (Slaughter v. Gerson, 13 Wall. 379.) An expression of present intention will not create an estoppel. (McCormick v. Arizona Bank, 52 P. 471; Clanton v. Scruggs, 10 So. 757; Jackson v. Allen, 120 Mass. 64-79.) A promise within the Statute of Frauds cannot be made binding by way of estoppel even though acted upon. (Langan v. Sankey, 55 Iowa 52; 7 N.W. 393; Weaver v. Bell, 87 Ala. 385; 6 So. 298.) A mere breach of promise cannot constitute an estoppel. (Starry v. Korab, 65 Ia. 267; 21 N.W. 600.) Plaintiff was a stranger to the transaction between Jones, the Shockley Corporation and Martin Quinlan and was not entitled to a judgment for profit growing out of that transaction. (Campbell v. Nichols, 33 N.J.L. 81.)

John Dillon and Gordon J. Christie, for defendant and respondent.

It is admitted that the measure of damages is the amount of the special interest, interest and costs within the value of the property, but the principle does not apply here. When the property is in possession of the praying party at the time the verdict is returned, or judgment rendered, there is no necessity for assessing its value. (34 Cyc. 1534.) The rule applies when the right is special as well as general. (Cumbey v. Lovitte, 79 N.W. 99.) If respondent had retained possession no assessment of value would have been necessary, (Jennings v. Johnson, 17 Ohio 155). A re delivery bond stands in place of the property to the extent of defendants interest and the property passes into the possession of plaintiff under the statute. (Boswell v. Bank, 16 Wyo. 208.) Respondents therefor have the same right with respect to the undertaking that they would have had had the property remained in their hands, to-wit, the right to liquidate their interest in the property. (5017 Comp. Stats. 1910.) The damages are not confined to the taking or detention, but in the value of defendant's interest in the property. The burden is upon appellant to establish the fact that the property is not worth the amount of respondent's special interest therein. When the value of defendant's possession is admitted it will be presumed that such value is equal to, or exceeds the amount admitted by the plaintiff as the value of defendant's interest. (Huges v. Swartz, 50 N.W. 5.)

BLUME, J. POTTER, C. J., and TIDBALL, District Judge, concur.

OPINION

BLUME, J.

This is an action in replevin, instituted by the appellant against appellees in Fremont county for the recovery of some livestock, a wagon, and two sets of harness. A bond was furnished and the property was delivered to the plaintiff. The answer contains a general denial. It also sets up a special interest in the appellees by virtue of a chattel mortgage on said property and a truck, dated January 23, 1918, filed for record January 26, 1918, securing notes aggregating $ 4000 and interest, executed to appellee, Edith A. Jones, by Martin W. Quinlan, husband of appellant. The answer further alleges an estoppel, claiming that during the negotiations for the sale of the above truck to Martin W. Quinlan, appellant represented to appellees that said Martin W. Quinlan was the owner of the property in controversy and had full authority to mortgage the same, and relying thereon that appellees sold said truck to Martin W. Quinlan. An order was made at the conclusion of the testimony permitting the filing of an amendment to the answer conforming the pleadings to the proof, which amendment, however, was never filed. The case was tried to the court without a jury; the court found generally for the appellees, that Edith A. Jones had the right of possession of the property in controversy at the commencement of the action, and that by reason of the taking of said property under the writ of replevin she had been damaged in the sum of $ 2347.28 and entered judgment accordingly. From this judgment the appellant has filed her direct appeal herein.

1. Counsel for the appellant contend that the judgment is contrary to the evidence, and that no estoppel, particularly such as was pleaded, was shown. It appears that Martin W Quinlan, husband of appellant, wanted to buy a truck, and arrangements therefor had been made in the early part of January, 1918, with the Shockley Service Corporation. Squier Jones testified that he, acting as agent for his wife, Edith A. Jones, was called on to furnish the purchase money for the truck, make a loan and take the property, together with the truck to be bought, as security; that he was called out to the farm where appellant and her husband were living; that some time, probably before January 20, he went to look over the property in controversy; that it was pointed out to him by Martin W. Quinlan, in the presence of the latter's wife, who helped in showing it; that they both were perfectly willing that the property should be mortgaged. The appellant...