Fogg v. Littlefield , 1877 Me. LEXIS 117 ( 1877 )

Babeows, J.

The plaintiff’s counsel admits that “ a debtor may waive his privilege and allow his exempted property to be attached, and that he may signify such waiver by acts as well as words.” But he complains because the judge instructed the jury that “ he (the debtor) may so conduct himself at the time that by his manner he may give the attaching officer to understand that he does not claim any privilege of exemption, but rather assents that the property may be attached.” “If he (the plaintiff) gave his consent and said to Mr. Keen, (the officer) ‘ There, all that property in that yard, comprising these oxen and those cows, are mine, and you can take the oxen or any of the rest of them yon see fit,’ there is his consent, — that would be a waiver. If that is true you need not go any further, the action cannot be maintained.”

This, it is ingeniously argued, may have misled the .jury to believe that the fact of waiver did not depend upon the debtor’s intention, but might exist when the officer misconstrued the debtor’s words and acts, and that the latter clause is objectionable as a decision by the judge of what words and acts would amount to a waiver, when he should have left it to the jury to say whether there was one.

Had this been all that was said to the jury in this connection, it is possible the jury might have so understood it. But the context also should be examined to see what idea was in fact conveyed to them.

Now the jury had just been distinctly and carefully instructed that “ the mere standing still, the mere silence of the debtor on seeing an officer go and attach a pair of cattle and drive them off, would not be giving his consent.” Then, after telling the jury that “ the exemption of a pair of cattle is a personal privilege to the owner, and that owner has a right to waive it if he sees fit,” and likening it to a poor man’s right to sell or mortgage his only cow, and instructing them that as he may sell his cow, “ he may also voluntarily waive his privilege of exempting his cow, and give an express consent that the officer may attach it and sell it for his debt,” he answers the question how shall such waiver be proved, by saying that it may be proved “ by any evidence that shall satisfy the jury that that was the intention of the parties at the time.” “ A man may waive the exemption privilege by words ; he may do it by acts ; he may do it by words and acts both;” and then comes the language before recited, upon which plaintiff bases his exceptions.

Now, from these instructions we do not believe that a jury of average intelligence would be liable to get the impression that anything short of a voluntary intentional communication by the debtor to the officer of his willingness to waive the exemption, and consent to an attachment would amount to a waiver, or that any misconception by the officer of his meaning and intention would have that effect; or that anything would be a waiver which did not satisfy the jury that such was the intention of the party at the time.

Jurors may fairly be supposed to accept the obvious import of the instructions upon any given point, but not, as is often the case with excepting counsel, to use a critical nicety of interpretation, to extract a meaning inconsistent with propositions that have been distinctly stated. A broad distinction had been laid down in the outset between a waiver and a mere non-claim of the exemption, and the elements of voluntariness and intention on the part of the debtor were made too prominent to be overlooked when the jury were considering whether he gave the officer to understand that he did not claim any privilege of exemption but rather assented to the attachment.

The plaintiff’s position, that the instructions given by the judge amounted to a decision of the question what language would constitute a waiver, and that he thereby took from the jury their right to decide whether there was or was not a waiver here, is based upon the idea that “what a debtor says in such cases does not necessarily or conclusively indicate what he intends to express or really does express,” — that “ the significance of words spoken under excitement is often modified by the tone and manner of the speaker and by his actions in connection with his words.” "We will not stop to determine whether one who uses language directly fitted to convey, and which does, in fact, convey to the mind of an officer the idea that he assents to the attachment of exempted property, would not be bound by the same kind of an equitable estoppel which forbids a man to assert a title to property which he has seen sold by a third party to an innocent purchaser without making known his claim.

We will regard the instructions as applied to the question of waiver only. The attention of the jury had already been called to the acts and manner of the debtor and to their possible effect in giving the officer to understand that he assented to the attachment, and all these things were to be looked at in determining whether the evidence was such as satisfied the jury that he so intended. To reach his conclusion that the judge decided a question as to the import and intent of the language, which should have been left to the jury, the counsel must ignore the first member of the sentence of which he complains. “ If he gave his consent, and said,” etc., runs the instruction, thus leaving it to the jury to find under previous directions whether he gave his consent; and it is plain from what immediately follows that all that was designed was to call the attention of the jury to-the conflicting accounts given by the plaintiff and officer as to what occurred at the interview. See Pope v. Machias W. P. Co.. 52 Maine, 535, 539, for instructions upon the subject of waiver, which, though differently framed, are substantially of-similar import with those here given.

The sentences complained of, when carefully examined in connection with the context, do not admit of the construction which plaintiff’s counsel seeks to put upon them.

Exceptions overruled.

Appleton, C. J., Walton, Virgin, Peters and Libbey, JJ., concurred.