O'Connor v. Clark

Opinion by Mr. Chief Justice Sterrett, If there were nothing more in this case than the facts recited by the learned trial judge in the excerpt from his charge quoted in the first specification of error, the instructions therein given to the jury to find for the plaintiff, if they believed the testimony, would be substantially correct. The only facts of which this instruction is predicated are, (1) that the wagon in question ivas the property of John O’Connor the original plaintiff, and (2) that Tracy, without his permission, took it and sold it or attempted to sell it to the defendant as his own. But, these are not the only facts of which there was evidence before the jury. On defendant’s behalf, it is contended that the testimony tended to prove, and the jury, if they had been permitted, would have been warranted in finding that defendant purchased the property in question from Tracy in the honest belief that he was in fact the owner thereof; that the name and occupation of Tracy, viz: “ George Tracy, Piano Mover; ” were on the wagon wdien he offered it for sale, and that fact was referred to as indicating his ownership of the property, etc., that Tracy being a stranger, defendant was specially careful to inquire and inform himself that the person, who was in possession of and offering to sell the wagon, was the George Tracy whose name and occupation were painted thereon; that Tracy’s name and occupation were put upon the wagon with the knowledge of O’Connor, the original plaintiff, and himself, and by direction of the former, for the purpose of creating the impres [321] sion and inducing tbe public to believe that the property belonged to Tracy, and was being used by him in his business, as a “ piano mover,” in which he had theretofore been engaged. Without attempting to summarize the testimony relied on by the defendant, it is sufficient to say that it tends to prove substantially the state of facts above outlined, and especially that the original plaintiff, for his own gain and benefit, was a party to the arrangement whereby Tracy’s name was put on the wagon for the purpose of misleading the public into the belief that the property was his, and that defendant, acting with due caution and in good faith, was thus misled as to the ownership of the property and purchased the same from Tracy. While the soundness of the general rule of law that a vendee, of personal property takes only such title or interest as Ids vendor has and is authorized to transfer, cannot for a moment he doubted, it is not without its recognized exceptions. One of these is where the owner has so acted with reference to his property as to invest another with such evidence of ownership, or apparent authority to deal with and dispose of it, as is calculated to mislead and does mislead a good faith purchaser for value. In such cases the principle of estoppel applies and declares that the apparent title or authority, for the existence of which the actual owner was responsible, shall be regarded as the real title or authority, at least so far as persons acting on the apparent title or authority and parting with value are concerned. Strictly speaking, this is merely a special application of the broad equitable rule that where one of two innocent persons must suffer loss by’n'eason of the fraud or deceit of another, the loss should fall upon him by whose act or omission the wrongdoer has been enabled to commit the fraud. Assuming in this ease that a jury under the evidence should find, as we think they would be warranted in doing, that such marks of ownership were placed on the property by direction of O’Connor, the real owner, as were not only calculated to deceive, but actually intended to deceive the public, and that by reason thereof, and without any fraud or negligence on his part, the defendant was misled into the belief that Tracy was the real owner, and he accordingly bought and paid him for the property, can there be any doubt, as between the real owner and the innocent purchaser, that the loss should fall upon the [322] former by whose act Tracy was enabled to thus fraudulently sell and receive the price of the property? We think not. In Bannard v. Campbell, 55 N. Y. 456, and 58 Id. 73,—a well considered case involving substantially the same principle, — it was held that to create an estoppel by which an owner is prevented from asserting title to and is deprived of his property by the act of a third person, without his assent, two things must concur : “ 1st. The owner must have clothed the person, assuming to dispose of the property, with the apparent title to or authority to dispose of it. 2d. The person alleging the estoppel must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real.” Without further consideration of the questions involved we think the testimony, to which reference has been made, tended to prove facts which, if found by the jury, would have brought the case within the principle of estoppel above stated, and that the learned judge, by the instructions above complained of, virtually withdrew the effect of that testimony from the consideration of the jury. In defendant’s second point, he was requested to charge: “If the jury find from the evidence that the plaintiff’s intestate allowed Tracy to put his name on the wagon, and made no effort to efface it and thereby allowed the defendant to be misled, their verdict must be for the defendant.” This was refused with the remark that he had already instructed them that their verdict ought to be for the plaintiff in the event of their believing the testimony. It follows from what has been said that the first and third specifications should be sustained. The second specification is dismissed. As presented, defendant was not entitled to an affirmance of the point therein recited. Judgment reversed and a venire facias de novo awarded.