Grubel v. Busche , 75 Kan. 820 ( 1907 )

Per Curiam:

This is an action of replevin, brought by E. J. Grubel against Henry Busche to recover possession of a horse. Defendant had judgment below, and plaintiff alleges error.

Busche made the defense that he purchased the horse in good faith from one Dysert, who represented himself to be the owner and had possession. Plaintiff furnished the money with which Dysert bought the horse in the first place, and had a written contract with Dysert by which they were to carry on the business of buying and selling horses. On the trial plaintiff testified that Dysert had possession as his agent, and with his consent delivered the horse to defendant, under an arrangement by which defendant, as plaintiff believed, was to board the horse for its use. Defendant contended that plaintiff had held Dysert out to the world as the owner of the horse by giving him the possession, control and apparent right of disposal; that he had bought it from Dysert and paid for it believing that Dysert was the owner, and relying upon plaintiff’s' conduct; that plaintiff was estopped by his acts and conduct to claim the horse afterward.

The principal contention here is that the court erred in instructing the jury to the effect that, though plaintiff owned the horse, if by his acts, statements or silence he permitted Dysert to appear as the owner, with authority to dispose of it, and defendant, induced by the statements, acts or silence of the plaintiff so to believe, relied thereon, and bought the horse in good faith, plaintiff was estopped. It is argued that there was no evidence upon which to base this and another similar instruction in which the words “allowed or permitted” were used to characterize the conduct of plaintiff. Without going into a review of the evidence, it is enough to say that we think there was some evidence upon which to base these and the other instructions complained of. It appears that Busche, the defendant, and Grubel, the plaintiff, have been intimate friends for years; that Busehe drove the horse for two months after the time he claims to have bought it, and plaintiff saw him frequently with it and made no objection or claim of ownership. Both parties testified and each flatly contradicted the other about conversations concerning the horse and Dysert’s relations with plaintiff and their knowledge of what he had done and had authority to do. The merits of the pase rest almost wholly upon the weight and credibility of the evidence, much of which is circumstantial. Two juries, one before a justice of the peace and the other in the district court, have found the facts in favor of defendant.

The judgment is affirmed.