Barbieri v. Messner

BROWN, J. Action to recover the value of a stock of goods alleged to have been wrongfully taken and converted by defendants. Plaintiff had a verdict, and defendants appealed from an order denying a new trial. Plaintiff, a minor, had been conducting a grocery and meat market at Stevenson, this state, and was at the time of the transaction here involved indebted to defendants in the sum of $760 for goods purchased from them, dealers at Hibbing, about seven miles from plaintiff’s residence and place of business. Defendants w'ere pressing him for payment, and on Saturday, June 22, 1907, gave him until Monday following to square his account, which plaintiff agreed to do. Instead of making settlement as agreed upon, however, plaintiff departed from the state at about the date mentioned and went to the state of Iowa, for the purpose, as he testified, of buying some hay to be shipped to Stevenson. Plaintiff had in his employ at the time a person named Dominico Mozzitelli, who, defendants contended on the trial, was a copartner, and not a mere clerk. On plaintiff’s failure to appear at the store on Monday morning, Mozzitelli assumed that he had absconded from the state and had abandoned his business and all the property connected with it. Defendants claimed at the trial that Mozzitelli so represented the fact to them, and also represented that he (Mozzitelli) was a copartner of plaintiff in the business. The situation was discussed between these parties, and the negotiations, conducted by defendants for the purpose of securing payment of their claim, resulted in the execution by Mozzitelli of a bill of sale to defendants of all the property connected with the store. Defendants then took possession of the property and thereafter converted it to their own use. Plaintiff returned within ten days and, upon learning what had been done in his absence, repudiated the transaction and demanded the return of his property. A return being refused, he brought this action to recover the value of the goods taken. I. Several assignments of error challenge the correctness of certain ruiings of the court in the admission and exclusion of evidence and [104] in restricting the cross-examination of plaintiff and his alleged partner, Mozzitelli. We have examined the record fully upon this branch of the case and discover no substantial error. The extent to which a party or witness may be cross-examined for the purpose of affect-ing his credibility rests in the sound discretion of the trial court, and we discover from the record no abuse of discretion in this case. 2. It is urged that plaintiff, though a minor, was, under the circumstances shown in the evidence, estopped from asserting his sole ownership of the property or from calling in question the validity of the sale by Mozzitelli, and that the trial court erred in refusing to submit this feature of the case to the jury. It is insisted in support of this position that the evidence fairly showed that plaintiff had represented to defendants that Mozzitelli was his partner, and that he held him out as such to the public generally, and that this, coupled with the conduct of Mozzitelli at the time in question in also representing himself as plaintiff’s partner, and that plaintiff had absconded from the state and abandoned his property, by reason of all of which defendants were induced to purchase and take the property, constituted a1 fraud upon them from which plaintiff’s infancy does not relieve him. It is not claimed that an infant is estopped generally from asserting his infancy when called upon to perform his contracts, but that the circumstances stated in reference to this particular transaction take the case without the general rule that the doctrine of estoppel does not apply to infants. That an infant is not estopped from asserting his minority has been held repeatedly by this and other courts. Conrad v. Lane, 26 Minn. 389, 4 N. W. 695, 37 Am. 412; Merriam v. Cunningham, 11 Cush. 40; Burley v. Russell, 10 N. H. 184, 34 Am. Dec. 146; 22 Cyc. 610,. The circumstances disclosed do not remove the case at bar from the rule stated. The complete answer to defendants’ contention is that the evidence wholly fails to connect plaintiff with the alleged fraudulent conduct of Mozzitelli. There is no evidence in the record tending to show that plaintiff induced or caused Mozzitelli to make the representations that he had absconded from the state or abandoned his property; and conceding that an infant might, in a proper case, be estopped from asserting his minority, where his fraudulent conduct induced and brought about the contract, as suggested by counsel (22 Cyc. 611), plaintiff here is not connected with any such fraud. [105] 3. The court charged the jury in effect that, if Mozzitelli was in fact a partner of plaintiff in the business, he had the right to sell the goods to defendants on the terms stated in the bill of sale, and that their verdict should be, if they so found, in defendants’ favor. This was probably more favorable to defendants than they were entitled to under the law, for it is doubtful whether one copartner may, without the consent of his associates, sell out the business of the firm, and removes from consideration any question relative to the authority of one partner to so act. The jury found that no partnership in fact existed. It is therefore unnecessary to inquire into the terms of the transaction. Whether defendants took the property under an agreement to pay all of plaintiff’s debts, or under some other arrangement, is immaterial, for Mozzitelli, not being a partner, had no right to sell the property for any purpose whatever. A careful consideration of the other assignments of error discloses no reversible error, and the order appealed from is affirmed.