Spooner v. Cummings

Under the answer of the defendant, any evidence was competent which tended to contradict the contention of the plaintiff, that the title to the horse and the right of possession were in him. Verry v. Small, 16 Gray, 121, 122. Whitcher v. Shattuck, 3 Allen, 319.

The defendant was not a party to the written contract between the plaintiff and Pope, but claimed outside of it, and in support of his own title he might show by parol what was the real arrangement between them, even if it differed from that contained in the writing. Kellogg v. Tompson, 142 Mass. 76. If the plaintiff expressly or impliedly authorized the sale by Pope to him, he, having bought in good faith from the apparent owner, acquired a good title. It is immaterial whether his right depends upon an actual authority to make the sale, or upon facts which estop the plaintiff from denying the validity of the sale. Burbank v. Crooker, 7 Gray, 158, 159. Haskins v. Warren, 115 Mass. 514, 538. Fall River National Bank v. Buffinton, 97 Mass. 498. Fowler v. Parsons, 143 Mass. 401. Tracy v. Lincoln, 145 Mass. 357.

The testimony as to the course of dealing between the plaintiff and Pope, involving a long series of transactions, all of the same kind and conducted generally in the same way, was competent, as tending to show an expectation and understanding on the part of both that Pope would sell the horses which he bought of the plaintiff as he had opportunity, and that he was *316impliedly authorized to sell this horse to the defendant. Hubbell v. Flint, 13 Gray, 277. Bragg v. Boston & Worcester Railroad, 9 Allen, 54. Lynde v. McGregor, 13 Allen, 172. First National Bank v. Goodsell, 107 Mass. 149. The testimony of Trull as to the message sent to Pope by the plaintiff, about the middle of June, was of a conversation so soon after the sale of June 2 to the defendant, that the judge might well admit it in his discretion. It related to the general course of dealing of which the sale to' Pope of the horse replevied was a part.

The jury .were rightly permitted to find that the plaintiff impliedly authorized the sale by Pope to the defendant, and that he was estopped to deny the validity of the title which the defendant acquired, relying on Pope’s possession and apparent ownership.

Exceptions overruled.

In the second case the defendant was permitted to introduce evidence, against the plaintiff’s objection, similar to that objected to by the plaintiff and admitted in the first case, and the plaintiff excepted.

The judge refused to instruct the jury, as requested by the plaintiff, that “there was no evidence to authorize the jury to find fraud or laches, or authority by Spooner to Pope to sell this mare.” The judge also instructed the jury, among other things, in terms similar to the instructions given by him in the first case. The plaintiff omitted to allege an exception to the instructions given until after the jury had left the court-room.

The jury returned a verdict for the defendant; and the plaintiff alleged exceptions.

The facts in this case are similar to those in Spooner v. Cummings, ante, 313, and the principles of law involved are the same in both. The evidence admitted under exception was competent, for the reasons stated in the opinion in that case, and for the same reasons the judge rightly refused to instruct the jury that “ there was no evidence to authorize the jury to find fraud or laches, or authority by Spooner to Pope to sell this mare.”

The exception as to the instructions given was intended to present in a different form the questions already decided ; but it *317does not appear to have been seasonably saved, and it is not before us for consideration. 50th Common Law Rule of the Superior Court. Lee v. Gibbs, 10 Allen, 248.

Exceptions overruled.