Bashore v. Parker

HENSHAW, J.

This action is in claim and delivery to recover personal property levied upon by the defendant Parker as sheriff of the county in certain actions - brought by the defendant Farmers’ Union and Milling Company against Rachel D. Bashore, wife of plaintiff, and James H. Stufflebeem, a son of said Rachel by a former marriage. Plaintiff claimed the property as community property. Defendants in answer averred that the property was the copartnership property of Rachel Bashore (and Stufflebeem, and for a separate answer pleaded an estoppel

in pais

against the plaintiff. Trial was had before a jury and judgment rendered for defendants. This appeal is from the order denying plaintiff’s motion for a new trial.

Appellant first insists that There was no sufficient pleading of an estoppel, and that therefore the court erred in admitting any testimony upon the question." But as the appeal here is only from the order denying a new trial, the inquiry is limited to. a consideration of-alleged errors at law and to the sufficiency of the evidence to support the verdict. Technical objections to the sufficiency of the pleading which might have been

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raised by special demurrer may not be considered upon this appeal. Reference may be made to the pleadings only to learn whether an estoppel was sufficiently well pleaded to justify the taking of evidence upon the matter. We think this defense was set forth with sufficient particularity. It is alleged that Rachel Bashore became indebted to the Farmers’ Union and.Milling Company for goods sold and moneys advanced to her; that during all the time of these transactions she was engaged in the business of farming, stock-raising, and wood-cutting, in her own right, upon her own account and in her own name, in the community where she now resides, and that during all this period she owned and held in her own right, upon her own account, and in her own name, real and personal property of great value; that during all of this time she and her husband, John Bashore, represented, stated, and caused to be known to the community, and in the cities of Visalia and Tulare, and in the vicinity of said cities, and to the people residing therein and thereabout, and to the business world generally, that the said Rachel was the owner in her own right and name, of real and personal property of great value, and of the real and personal property set forth and described; and, further, that John Bashore had no interest whatsoever in or to the property, or in or to, the business, or in or to the proceeds thereof; still further, that Rachel Bashore and John Bashore represented, stated, and caused to be known to the community generally, and to the defendant the Farmers’ Union and Milling Company in particular, that Rachel was the owner in her own. right and name of all this property, and that John Bashore had no interest whatsoever in or to it or any part of it, or to the business so conducted by her; that defendant Farmers’ Union and Milling Company, relying upon the conduct, representations, and statements of the plaintiff and the said Rachel, his wife, as above set forth, and believing the same to be true, and not otherwise, made advances to Rachel Bashore; that John Bashore had full knowledge and notice of all the facts and circumstances above alleged and full knowledge and notice of the fact that the Farmers’ Union and Milling Company was extending credit and selling goods and wares, and advancing money to Rachel, upon the faith of the representations and statements and conduct of himself and Rachel; and