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Mrs. Rosencranz did no act to induce defendant to extend him credit on the assumption that she would not enforce it. At most she 537 was represented as a creditor who was willing to be indulgent and not to crowd Goldberg.

Conceding the full force of the doctrine of estoppel, that one who neglects to speak shall not be heard to do so when his silence or acts have led another to act to his injury, we are unable to find any evidence upon which to estop plaintiff in this case.

Her debt was not kept secret. She made no representation to defendant to induce it to sell its goods to Goldberg, and conceding she was willing to indulge her debtor she was in no manner bound to forego the collection of her debt. The cases all agree that there can be no estoppel unless the party who alleges it relied upon the representation, was induced to act by it and thus relying and induced did take some action. Giving now full scope to everything represented by Goldberg, it must have been apparent to any reasonable man contemplating extending him credit, that if he desired to estop Mrs. Rosencranz something more than her mere gratuitous agreement with Goldberg was required to tie her hands so that she would not be at liberty to enforce her debt like his other creditors. Defendant was notified. It cannot be heard to say, in view of the evidence adduced by itself, that the truth was unknown to it at the time it sold Goldberg and at the time it credited him. Mrs. Rosencranz asserted the debt which defendant was advised she held, and it knew the full extent to which she was bound not to enforce it, and that was a gratuitous agreement founded upon no consideration. It sought no greater security before it sold to him and obtained no more later. We do not think defendant established its estoppel even if it had been in position to do so. But if it had any equities or could invoke estoppel in a proper case, it cannot do so here, for the reason that it stands in this record as a trespasser with no right or title to the property. It acquired no lien or title by its attachment proceedings in Kansas. Plaintiff was in the peaceable possession, and if it desired to rely on its estoppel 638 it should have proceeded, not by trespass or force, but by invoking its claim in a court of justice. This defense is no more open to it than was the claim that Goldberg had sold and delivered the property to plaintiff to defraud his creditors. So far as this action is affected these two defenses stand in the same class.

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Whatever the "confusion” which defendant pleads as an extenuation of the methods resorted to for the purpose of giving the Kansas courts jurisdiction, it must be said that plaintiff in no way contributed to it.

While we are satisfied defendant was only attempting to secure an honest debt, and that there was no wicked purpose in the various steps taken by it, still the courts cannot countenance the extreme methods used in this case to confer jurisdiction on the Kansas courts over plaintiff's goods. However honest the debt, it can only be enforced in the courts by obtaining jurisdiction in the manner prescribed by the law of the land. The fact of jurisdiction may lie inquired into and when obtained by fraud in fact or fraud in law, the judgment may be impeached collaterally.

This principle is well established in Parsons v. Dickinson, 11 Pick. 352; Wood v. Wood, 78 Ky. 624; Dunlap v. Cody, 31 Iowa, 260, 1 Am. Rep. 129; Duringer v. Moschino, 93 Ind. 495; Deyo v. Jennison, 10 Allen, 410; Drake on Attachment, sec. 193; Byler v. Jones, 79 Mo. 263; Capital Bank v. Knox, 47 Mo. 333.

It results that the court erted in refusing plaintiff's instructions invoking the views we have expressed, and in giving those for defendant. The judgment is reversed and the cause remanded to be proceeded with in accordance with this opinion.

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All concur.

The Conversion of Personal Property sufficient to sustain trover is the subject of a monographic note to Bolling v. Kirby, 24 Am. St. Rep. 795-819. And the title and possession sufficient to maintain trover are discussed in the note to Hostler v. Skull, 1 Am. Dec. 585. 589. The general rule is, that in an action of trover the plaintiff must show that at the time of the conversion he had a right of property, general or special, in the chattels, and the posgession or the immediate right to the possession thereof: Union Stock Yard etc. Co. v. Mallory, 157 Ill. 554, 48 Am. St. Rep. 341, 41 N. E. 888. His possession may be actual or constructive: Gage v. Allison, 1 Brev. (S. C.) 495, 2 Am. Dec. 682; Lewis v. Mobley, 4 Dev. & B. (N. C.) 323, 34 Am. Dec. 379. See, also, White v. Yawkey, 108 Ala. 270, 54 Am. St. Rep. 159, 19 South. 360; Alliance Trust Co. v. Nettleton Hardware Co., 74 Miss. 585, 60 Am. St. Rep. 531, 21 South. 396.

Upon the Dissolution of an Attachment, the defendant is entitled to the return of the property: McReady v. Rogers, 1 Neb. 124, 93 Am. Dec. 333.

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CASES

IN THE

SUPREME COURT

OF

NEBRASKA.

FARMERS' AND MERCHANTS' INSURANCE COMPANY

V. DABNEY.

(62 Neb. 213, 86 N. W. 1070.) APPEAL.—Exceptions to the Exclusion of Testimony are on. availing, unless there is tender made of the proof which it was sought to elicit. (p. 626.)

PLEADING–New Canse of Action in the Reply. An objection that cause of action is first stated in the reply is waived, if not raised in the trial court, and the issues are presented and submitted on their merits. (p. 628.)

APPEAL.-If the Proofs are Conflicting, the Verdict will not be disturbed on appeal, unless clearly not sustained by the evidence. (p. 629.)

APPEAL.-Alleged Error not Brought to the Attention of the trial court will not be considered in the supreme court on a review of the case by petition in error. (p. 630.)

CLASS LEGISLATION.—There is Nothing in the Constitution of the United States, or of Nebraska forbidding the classification of subjects for the purpose of legislation. (p. 630.)

CLASS LEGISLATION–Attorney's Fees Against Insurance Companies.—A statute authorizing the taxation of attorney's fees as costs when a judgment is rendered against an insurance company

action on a policy covering real estate, is constitutional. (p. 631.)

Halleck F. Rose and Wellington H. England, for the plaintiff in error.

in an

Michael F. Harrington, for the defendant in error.

214 DAY, C. For brevity the parties will be referred to as “plaintiff” and “defendant” as they appear in the court below.

This action was brought by plaintiff, on appeal from the county court to the district court of Holt county, against the defendant, the basis of the action being an insurance policy issued by the defendant to the plaintiff, dated April 26, 1892, and expiring April 26, 1897. The consideration for the policy was plaintiff's note 215 for thirty-six dollars, dated April 26, 1892, and due December 1, 1892. The specific property covered by the policy and the amount of insurance thereon were as follows: eight hundred dollars upon the dwelling-house; three hundred dollars on barn No. 1; two hundred dollars on barn No. 2; and five hundred dollars on cattle. The dwelling-house was wholly destroyed by fire on March 14, 1896. The trial resulted in a verdict for plaintiff for eight hundred and thirty-seven dollars, upon which, with aecrued interest, a judgment was subsequently rendered. To review this judgment defendant brings error to this court.

The answer admitted the issuance and delivery of the policy, but alleged that the note given for the premium contained a stipulation that the company should not be liable for any loss or damage which might occur to the property while the note, or any part thereof, was past due and unpaid; that at the time of the alleged fire the note was past due and unpaid, and still remains unpaid; that the policy by its terms became suspended and inoperative, and no liability attached to the defendant thereunder. The policy contained a stipulation as follows: "If a note be given for the premium on this policy, or any part thereof, it is mutually agreed and understood by and between the assured and the company that, in case said note or any part thereof be not paid at maturity, this policy shall be suspended, inoperative, and of no force and effect so long as such note, or any part thereof, remains overdue and unpaid; and in case of any loss of said property, either partial or total, while said note or any part thereof remains overdue and unpaid, this company shall not be liable for said loss, nor shall the payment of said note, or the receiving or retention of the proceeds, or any part thereof, by this company, render it liable for any loss occurring while said note, or any part thereof, remains overdue and unpaid ; nor shall such payment or retention be said to be a waiver of any condition in the policy or obligation. The payment of the premium, however, revives this policy, and reinstates the same for the remainder of this term only."

210 The reply alleged that, previous to the fire, it had been mutually agreed that the contract of insurance was severed; that

Am. St. Rep., Vol. 97-40

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the dwelling-house was insured separately from the other property; that the defendant received from plaintiff full payment of the premium on the dwelling-house prior to the loss. By order of the court, the petition filed in the county court was to stand as the petition in the district court, to which defendant filed answer, and plaintiff filed reply.

It will not be necessary to consider all of the numerous errors alleged in the petition in error. Such as are not argued in the brief will be deemed to have been waived. One of the assignments relates to the overruling of the motion to strike the reply from the files.

Immediately after the jury was sworn, the defendant called the county judge as a witness, presumably to show by oral testimony that the issue presented by the pleadings was different from what it was in the county court. Upon objection to the examination of the witness on the ground that its purpose was not disclosed, defendant made an oral motion to strike the reply for the reason that the pleadings presented a new issue from the one tried in the county court; but before the motion was passed on, or any testimony taken in support thereof and apparently immediately following the motion to strike the reply, the defendant suggested a diminution of the record. A colloquy followed between the court and counsel, for both sides, at the conclusion of which the court made a ruling: "The order is granted, and I will look up the question of jeopardy.” This is the only ruling disclosed by the record on the motion to strike the reply, and to this ruling no exception was taken by the defendant. The order of the court is indefinite as to its application to the motions then before the court, but it referred to the diminution of the record; otherwise, there would have been no occasion to have proceeded with the trial upon the theory the case was tried. It would have been an easy matter, by comparison of the pleadings in the county court with those in the district

court, to determine whether a new issue had been raised. The record brought to this court shows the proceedings had in the county court, and discloses that plaintiff was granted leave to file a reply, and that a reply was filed; but it is not set out iu the transcript. If it had become lost, its contents could have keen established by competent evidence. If the defendant desired to insist on its motion to strike, it should have interrogated the witnesses further, and, if denied that right, made its offer to prove the fact. Failing to do this, there is nothing presented in this assignment of error for our review.

217

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