Rudnick v. Shoenberg

Decision Date23 October 1923
Citation122 A. 902,32 Del. 339
CourtSupreme Court of Delaware
PartiesBENJAMIN L. RUDNICK, defendant below, plaintiff in error, v. FANNIE SHOENBERG, plaintiff below, defendant in error

Supreme Court, October Term, 1923.

Error to Superior Court for New Castle County, No. 86, January Term, 1922.

The judgment is affirmed.

George W. Lilly and Philip L. Garrett for defendant below, plaintiff in error.

Caleb E. Burchenal for plaintiff below, defendant in error.

WOLCOTT Chancellor, PENNEWILL, C. J., Harrington and RICHARDS, J. J. sitting.



Fannie Schoenberg, the defendant in error, brought an action of replevin against Benjamin L. Rudnick, the plaintiff in error for the recovery of the possession of certain fixtures used in the meat business, and a verdict was rendered in her favor. During the trial of the cause a sworn statement was admitted in evidence, signed by the said Fannie Schoenberg and her husband Morris Schoenberg, which had been filed by them as an answer to the statement of claim filed in a suit previously brought against them in the court of common pleas by the said Benjamin L. Rudnick.

The assignment of error relied upon is based upon the refusal of the trial court to instruct the jury to return a verdict in favor of the defendant.

The plaintiff in error bases his appeal to this court upon the single fact that in the answer filed in the suit brought in the court of common pleas it was alleged that both Fannie Schoenberg, the defendant in error, and Morris Schoenberg, her husband, were the owners of certain fixtures, being the same fixtures for which the action of replevin was brought; that the said Fannie Schoenberg and Morris Schoenberg were, therefore, estopped by the pleadings filed in the suit brought in the court of common pleas, from testifying in the replevin suit that said fixtures were the property of Fannie Schoenberg alone, and could not claim them as her separate property.

It must be conceded, that in an action of replevin it is incumbent upon the plaintiff to show a general or special property in the goods replevied with the right to immediate and exclusive possession. Pritchard's Adm'r v. Culver, 1 Harr. 76; Prichard's Adm'r v. Culver, 2 W.W. Harr. 129; Wilkins v. Wilson, 15 Del. 404, 1 Marvel 404, 41 A. 76; Ott v. Specht, 13 Del. 61, 8 Houst. 61, 12 A. 721; Reed v. Wiltbank, 18 Del. 243, 2 Penne. 243, 45 A. 400.

Does it clearly appear in the answer filed in the court of common pleas that the fixtures in question were the joint property of the defendant in error, Fannie Schoenberg, and her husband, Morris Schoenberg; or that they were not the sole property of Fannie Schoenberg? The answer admits that Morris Schoenberg, the husband of the defendant in error, entered into an oral agreement with Benjamin L. Rudnick, the plaintiff in error, to conduct a meat business for which the said Morris Schoenberg was to supply the fixtures. In Paragraph 8 of the answer, on page 8 of the record, the following language is used:

"Benjamin L. Rudnick should turn over to Morris Schoenberg all his fixtures supplied for the business at Ninth and Bennett streets."

And in paragraph 10 of the agreement, on Page 9 of the record, we find the following language:

"And in addition has unlawfully retained possession of certain fixtures that had been supplied by defendant Morris Schoenberg."

And again on page 9 of the record, under recoupment, at Section 1, we find the following language:

"That the various items described as fixtures and specified in Paragraph 10 above, supplied by the said Morris Schoenberg and admitted by the plaintiff in his statement of claim to be the property of defendants, have been unlawfully retained."

We are unable to find anything in the language indicating the ownership of the fixtures with sufficient certainty to enable us to hold that Fannie Schoenberg, the defendant in error, was estopped from claiming them as her property in the action of replevin. In order to raise an estoppel the purposes and intentions of the parties must be expressed with certainty, the facts alleged to constitute it must clearly express the meaning contended for so that nothing will be left to be explained by argument or to be taken by inference. Mills v. Graves, 38 Ill. 455, 87 Am. Dec. 314; Fletcher v. McGill, 110 Ind. 395, 10 N.E. 651, 11 N.E. 779; Martin v. Maine Cent. R. Co., 83 Me. 100, 21 A. 740; Schwab v. Edge, 214 Pa. 602, 64 A. 80; Hast v. Piedmont & C. R. Co., 52 W.Va. 396, 44 S.E. 155; Claflin v. Boston & A. R. Co., 157 Mass. 489, 32 N.E. 659, 20 L. R. A. 638; Ware v. Cowles, 24 Ala. 446, 60 Am. Dec. 482.

The answer filed in the court of common pleas speaks of the fixtures as having been supplied by Morris Schoenberg, but this does not clearly indicate that they belonged to him; certainly there is room for argument as to their ownership and it might reasonably be inferred that they belonged to his wife, Fannie Schoenberg, who also signed the answer. Careless expressions made by persons who are ignorant of their rights, or declarations ambiguous in their character, cannot create a bar to the assertion of the truth.

We feel certain that upon this ground the court below was right in refusing to instruct the jury to render a judgment for the defendant.

There is also another ground upon which the ruling of the court below can be sustained, namely, the well established principle that admissions made in judicial proceedings are never conclusive and never raise an estoppel except in the suit in which they are made. The reasonableness of this can be readily seen, because testimony given subsequently may be contradicted. Mr. Wigmore in his work on Evidence on this subject, says:

"The moment we leave the sphere of the same cause, we leave behind all questions of judicial admissions. A judicial admission is a waiver of proof and a pleading is, for the purpose of the very cause itself, a defining of the lines of controversy and a waiver of proof of all matters outside these lines of dispute. But this effect ceases with that litigation itself. But, when we arrive at other litigations and seek to resort to the parties statements as embodied in the pleading of prior litigations, we resort to them merely as quasi admissions; that is, ordinary statements which now appear to tell against the party who then made them." 2 Wigmore, § 1065, p. 1242.

The answer containing the statements above quoted was filed in a suit brought in the court of common pleas, based on an arbitration agreement and certain bills resulting from the business conducted at Ninth and Bennett streets, in the city of...

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3 cases
  • Galdieri v. Monsanto Co.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • May 7, 2002
    ...Pa.Super. 128, 193 A. 59, 60 (1937); see also Employers' Liab. Assurance Corp. v. Madric, 183 A.2d 182, 188 (Del.1962); Rudnick v. Schoenberg, 122 A. 902, 903 (Del.1923). The Court denies Monsanto's motion for summary judgment at this stage. Nonetheless, it remains to be seen whether Monsan......
  • Employers' Liability Assur. Corp. v. Madric
    • United States
    • Supreme Court of Delaware
    • June 19, 1962 is neither. An estoppel may not rest upon an inference that is merely one of several possible inferences. See Rudnick v. Schoenberg, 2 W.W.Harr. 339, 32 Del. 339, 122 A. 902. This is not a question of instructions to the jury; it is whether the defendants have made out a case--a question......
  • Alcoa Materials Mgmt., Inc. v. Niagara Worldwide LLC
    • United States
    • Ohio Court of Appeals
    • December 15, 2016 goods with the right to immediate possession. See, e.g., Holstein v. Holstein, 7th Dist. No. 559 (May 4, 1982); Rudnick v. Schoenberg, 32 Del. 339, 122 A. 902, 903 (1923).ANALYSIS {¶33} There is no dispute the anodes were identified: they existed at Ormet's facility at the time of contra......

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