Beebe v. Wilkinson

Upon the issues made by the pleadings, there was sufficient evidence to support the verdict in plaintiff’s favor. If the jury believed the evidence of plaintiff and Maud Beebe, his sister, who mortgaged the goods in question to defendant, they belonged to plaintiff, and there was no basis for an estoppel against him, growing out of his alleged admissions or conduct in the premises. The property, a stock of millinery goods, had been in the possession of Maud Beebe, with whom plaintiff resided. The evidence in defendant’s behalf tended to show that he took the mortgage without notice of plaintiff’s claim, and plaintiff actually consented to and acquiesced in the transfer, and, prior thereto, admitted and stated to defendant that he had no interest in the goods. This is denied by plaintiff, and Maud Beebe testified: “I always told the defendant that the old stock of goods belonged to the plaintiff. I told him so at our first meeting, and I told him how the stock came to be there;” and that defendant himself caused the mortgage to be prepared, including these goods, with other stock belonging to her, and persuaded her to sign it.

*551The court charged the jury, in substance, that if plaintiff, with knowledge of the facts and negotiations between the parties to the mortgage, purposely refrained from disclosing his interest, so as to influence defendant to advance monpy to-his sister, or consented to or ratified the transfer, he could not recover; and also, at plaintiff’s request, charged that “to create an estopped against plaintiff in this case, he must have clearly done or omitted to do some act, or made or omitted to make some declaration, which has influenced the conduct of the defendant; and the act, declaration, or omission must have been made to deceive or mislead the defendant.” It maybe admitted that this statement is incomplete and inaccurate as a definition of estoppel. Pence v. Arbuckle, 22 Minn. 417; Coleman v. Pearce, 26 Minn. 123; Blair v. Wait, 69 N. Y. 113. But, as applied to the evidence upon this branch of the case, this language could not have misled the jury. There could be no other reasonable inference, if the evidence introduced in defendant’s behalf, touching the declarations and conduct of the plaintiff, were true, than that he intended to induce or permit defendant to buy or take a mortgage on the goods, in the belief that they were not his, but his sister’s, so that defendant would be misled and defrauded, if plaintiff were afterwards permitted to assert a claim to the property in hostility to him. The question, therefore, was one of fact upon the evidence between the parties, which must have been found for plaintiff, and the error in the charge must be regarded as harmless.

The inventory offered in evidence by defendant was properly rejected. It was not offered as a memorandum to refresh the memory of a witness, nor was the proper foundation laid for its introduction as independent evidence of the amount and value of the goods in controversy. Its accuracy was not properly verified, and it does not appear that the witnesses might not have' testified from memory, without the aid of the paper. Stickney v. Bronson, 5 Minn. 172, (215;) Newell v. Houlton, 22 Minn. 19; Gould v. Conway, 59 Barb. 355.

There was some evidence offered tending to show that one Barron had some interest in the property, but the court properly ruled that, as the question of a defect of parties was not raised by the pleadings, it was waived.

*552Upon the question of damages the court committed no error in its charge. It stated the correct rule to be, not what the goods were worth to the witnesses, but their market value at the time defendant took them, and left the evidence on the subject fairly to the jury.

Order affirmed.