Sweezey v. Collins

Day, J. I. The evidence shows that in the deed to Blakeslee the property was described as “ containing seventy-five 1. EviDisjjrcjs: adinissfbulty. acres, more or less.” The plaintiff introduced Mrs. A. R. Smith, the widow of A. S. Blakeslee, who was present when the deed from Blakeslee to Collins was executed. This witness testified: “ Blakeslee read the deed, and spoke of the words, more or less, having been left out, and Mr. Murphy said it would make no difference.” The “ defendants moved the court to strike out all that part of the testimony of the witness as to whether Blakeslee read the deed, as to the description of the property in the deed, words left out of the deed, Blakeslee’s inquiries and Murphy’s replies thereto, for the reason the same are immaterial and not admissible for any purpose, the deed being the best evidence thereof.” The court overruled the motion, and this ruling is assigned as error. The evidence is not vulnerable to the objection raised. It is true, the deed, as to the description of the property, is the best evidence, but the witness did not testify as to the description. As to whether Blakeslee read the deed, whether words were left out of it, what Blakeslee’s inquiries and Murphy’s replies were, the deed furnishes no evidence. The weight of this evidence cer [542] tainly is not very great. But the court did not err in refusing to strike it out for the reason assigned. II. Plaintiff introduced M. E. Blakeslee, the son of A. S. Blakeslee, deceased, and asked him to state the conversation Blakeslee, deceased, and asked Turn to state the conversation 2. heir: corn-petency us witness. he heard between his father and defendant, Ool-hins, about the purchase of the farm. Defendant objected to this testimony for the reason that witness was heir of deceased, and plaintiff derived the notes sued from the athuinistratrix of the estate of the deceased. The objection was overruled, and defendants excepted. The witness testified: "Defendant came to the p'ace about noon, and asked father if he had a farm to sell. I-Ic, father, said he had. In reply to his questions, father told him he bought it for, and supposed there were, seventy-five acres in it; that it never had been surveyed." Defendants’ counsel'submits the question whether this evidence is competent under section 3639 of the Code of 1873, though, from the tone of his argument, it is apparent that he has not much confidence in the position that this evidence was improperly admitted. It is evident, from an examination of section 3639, that in the cases which it provides for it merely inhibits the examination of the witness in regard to any personal transaction or communication between such witness and a person, at the commencement of the examination, deceased,, insane, or lunatic. The witness in question did not testify as to any transaction or communication between himself and the deceased, but in regard to a conversation which he heard between the deceased and the defendant. The section in-question does not exclude such testimony. III. All that remains of the case respects the sufficiency of the evidence to support the judgment. Although the finding of the court is general for the plaintiff, yet we think the clear inference from the whole case is, that the court so found upon the ground that defendant,' John Collins, had estopped himself from insisting upon the defense set forth in his counter claim. There is evidence in the case tending to show that plaintiff, before purchasing the notes, saw Collins and asked him if they were all right, and that he said they were. Upon,. [543] the other hand, the defendant denies that he had any conversation with plaintiff respecting the notes until after he purchased them. Upon this question there is fairly a conflict of evidence, and the finding of the court is not so opposed to its weight as to justify our disturbing it. Appellant, however, contends that, if Collins made a statement that the notes were all right, in ignorance of the fact of the deficit in the number of acres, he is not estopped from asserting and relying upon the truth. Citing Whitaker v. Williams, 20 Conn., 97; Taylor v. Ely, 25 Conn., 258; Davis v. Davis, 26 Cal., 23; Copeland v. Copeland, 28 Maine, 539; Danforth v. Davis, 29 Conn., 107; Combs v. Cooper, 5 Minn., 254. Appellee, upon the other hand, insists that “ a party is estopped from contradicting his own representations on the strength of which another has acted, even where such representations were made in good faith and in ignorance of the facts.” Citing Petree v. Futer, 21 Wendell, 172; Hills v. Varet, 3 N. Y. Legal Obs., 105. We need not now determine-which is the better doctrine. It is not controverted by appellant that “ a party’s ignorance 3. estoppel : ignorance. ’ of the truth of the representation made will not remove the estoppel, if his ignorance is the result of gross negligence.” See Bigelow on Estoppel, 540, and cases cited. The land was purchased on the 25th day of April, 1868. The court might well have found that Collins was informed by Blakeslee that the land had never been surveyed. The notes were not purchased until the latter part of March, 1871. The evidence fully warranted the court in concluding that Collins was grossly negligent in remaining for three years ignorant of the actual quantity of the land, and in informing the purchaser of the notes that they were all right. We discover no error in the record. AFFIRMED.