Mitchell v. Reed

Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. The plaintiff was a merchant, engaged in the sale of groceries and liquors. The business at the store was generally conducted by his clerk, D. II. Haskell. On the trial, i,t was proven by two witnesses that plaintiff was a Son of Temperance, and that he repeatedly denied that he dealt in liquors, alleging that the liquors in the store were the property of Haskell, who sold them without plaintiff's consent. These declarations of plaintiff coming to the ears of Wm. H. McGrew, a creditor of Haskell’s, he sued out an attachment, and had the liquors attached and sold as the property of Haskell. When the defendant, Reed, a constable, levied the attachment upon the .liquors, he was notified by Haskell, as the agent of Mitchell, that they were in fact Mitchell's property. This suit was brought to recover the value of the goods sold. The plaintiff had judgment in the Court below, and the defendant appealed.

The Court below instructed the jury, that if McGrew, by the representations of Mitchell concerning the liquors, was induced to levy the attachment upon them as the property of Haskell, then Mitchell would be estopped to claim them as his own, unless he, by himself or agent, notified the officer that the liquors were the property of plaintiff ■, in which case, he would not be estopped.

It is insisted by the learned counsel of defendant that the latter portion of the instrument was erroneous. Conceding that McGrew was induced by the representations of Mitchell to bring his suit and levy his attachment upon the liquors as the property of Haskell, was Mitchell estopped to claim the property as his own ?

Professor Greenleaf, in his accurate work on Evidence, divides estoppels into two kinds, solemn and unsolemn admissions. The latter are those “ which have been acted upon, or have been made to influence the conduct of others, or to derive some advantage to the party, and which cannot afterwards be denied, without a breach of good faith.'' (Section 27.) The rule is laid down by the author in section two hundred and seven, in this language:

“ Admissions, whether of law or of fact, which have been acted are conclusive the [206]them, in all cases between him and the person whose conduct he has thus influenced. It is of no importance whether they were made in express language to the person himself, or implied from the open and general conduct of the party. Eor, in the latter case, the implied declaration may be considered as addressed to every one in particular, who may have occasion to act upon it.”