McKellop v. Jackman

The opinion of the court was delivered by Powers, J. The question controverted at the time was the title to the wood — the plaintiff standing upon a title derived from Carpenter, and the defendants standing upon the title claimed in Wheelock’s estate. The plaintiff sought to show a license from Wheelock to Carpenter to sell the wood. This proof tended to support the plaintiff’s title — in fact would establish it, and entitle the plaintiff to judgment. The proof, then, touches the very issue or contract on trial. Wheelock being dead, Carpenter is not a competent [62] witness on this point; his evidence tends to lessen the assets of the estate of Wheelock. Jackman, the administrator of Wheelock, stands precisely as, Wheelock would have stood under the same circumstances. He may be estopped by his conduct in the same manner, from setting up title to the wood. The plaintiff’s evidence tended to show that Jackman knew before attaching the wood that plaintiff had bought it, and claimed to own it, and that on one occasion he was present, and saw the plaintiff and Carpenter cutting the wood, and made no objection. This evidence, if believed, would support an estoppel, as against the estate, as effectually as it would had Whecloek, in life, known and seen the same facts and acts. The County Court did not submit to the jury the question whether the plaintiff rightfully cut the wood, and had a title to it that the defendants could not question. Herein was error. Judgment reversed, and a new trial granted.