Borkenhagen v. Paschen

Cassoday, J. The plaintiff brings this action to recover property taken by the defendant, as sheriff, on an execution against her husband. If the property at the time of seizure belonged to the husband, then it was subject to the levy. If, on the other hand, it was the property of the wife, then the plaintiff ought to recover. Whether it belonged to the one or the other was a question, under the evidence, for the jury. That question was submitted to the jury. The court also submitted to the jury the question whether the judgment creditor was induced by anything said or done by the plaintiff to make the sale of the coffee to her husband, as the owner or proprietor of the store: There was testimony on the part of the defendant to the' effect that one Baumann, agent of the judgment creditor, applied to the husband to take an order for the coffee; that he sent him to his wife to ascertain whether any was wanted in the store; that she .gave him an order and di 274 rected him to charge the amount to her husband. What she said and did at the time was admissible as tending to prove that the business at the store was conducted by, and the goods therein belonged to, the husband. In view of that evidence, the court charged the jury that “ If, from the conversation that took place at that time, by her language or her acts, it amounted to a representation on her part, made by her with the intention of influencing this man Baumann to make the sale upon the idea or impression produced by those statements, that Joseph Borkenhagen was the owner, of the stock, or if, from what transpired at that time, he would so reasonably believe, and the statement would therefore influence him to make the sale to Joseph Borkenhagen, as the proprietor of the store, then, in that case, if you should so find that Baumann in consequence of any acts or representations or statements made by Mrs. Bor-Icenhagen, under the belief that Joseph Borkenhagen was the owner of the stock, sold the stock to him and gave him credit for it, then she would he estopped to deny that fad, because it would be through her act that the credit was obtained; and if you should so find, then your verdict should he for the defendant.” This was clearly error. We find no evidence of anything said or done by the plaintiff at the time of ordering the coffee sufficient to estop her from reclaiming the whisky and flour. Especially is this so where, as here, no estoppel has been pleaded. Warder v. Baldwin, 51 Wis. 459. True, that evidence was admitted without objection. But such admission of evidence upon the issue made did not make it available upon the subject of estoppel which had not been pleaded and hence was not in issue. By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.