Earl v. Stevens

[477] The opinion of the court was delivered by Ross, J. The referee has found that the plaintiff owns the property in contention. This entitles him to recover unless his conduct in regard to the property has been such, that he is estopped from denying -that the property belongs to his son Riley, as regards the attaching creditor, Robbins. It is not found that the plaintiff had ever told Robbins, or any other of his son’s creditors, that his son owned the property. Having occasion to be absent from home, he left certain personal property on his farm in Eden in the care and possession of his son, with direction to trade the same, if he liad an opportunity to make some money thereby. The son diligently traded the property thus left in his care, in his own name. The property in contention was obtained by the son in such trades. The referee has found that no fraud, nor deceit, was intended by the plaintiff, or by his son; but that, from all the circumstances, the plaintiff must have known that the son was trading the property in his own name. The attaching creditor, Robbins, knew that the son wTas thus trading the property on the farm, in his own name. Conceding, without deciding, that the father, by thus knowing that the son was trading the property left in his care, in his own name, held the son out to the world as the owner of the property, the facts found, by the referee still lack one essential element of an estoppel. It is not found, that Robbins in the sale of the horse, which is the foundation of his claim against the son, relied at all upon the son’s ownership of the property on the farm, or upon the son’s ownership of the property in contention, as an inducement to the sale, and credit then given to the son. He took a lien upon the horse sold as security for the payment of the balance of the purchase money. This inferentially negates a reliance upon the son’s ownership of the personal property on his father’s farm. To estop one from declaring the truth, his conduct must have not only been such as would lead the other party to believe that the fact was otherwise [478] than the truth, but such other party must show affirmatively, that he has acted, in reliance upon the fact being-otherwise; and that to allow the truth to be asserted would operate as a substantial injury, or fraud, upon him. The attaching creditor has not shown that in trading with the son he relied as a means of payment upon the son’s ownership of the property attached. Neither has he shown that the son then had in his care and possession-the horse and cow for which alone the plaintiff, before this court, claims to recover. If, at the time of sale of the horse by Robbins to the son, the son did have in his care the horse and cow for which the plaintiff claims to recover, and the other property belonging to the plaintiff in the son’s care was the same disclosed by the referee’s report, the horse and cow were exempt from attachment and levy of execution by the creditors of the son. Hence they were not the means of giving, and could not give, the son false credit; and it would be preposterous to suppose, that they operated to secure from Robbins credit for the son in the trade for the horse, out of which arose the indebtedness, upon which Robbins caused the horse and cow to be attached. We think, therefore, that the facts found by the referee fail to establish that the plaintiff is estopped from asserting his title to the horse and cow in contention. The judgment reversed, and judgment rendered for the plaintiff to recover of the defendant $36.50, the value of the horse and cow, with interest from March 1, 1882, and his costs.