Dann v. Cudney ( 1865 )

Cheistiancy J.:

This was an action of trover brought by defendant in error, who was a married woman, for the wrongful conversion of a horse. She had allowed her husband to use the horse, and he had driven him, with his own, from Canada to East Saginaw, about the 1st of November, 1862, where, within two days after, he sold this and the other horse to one John Sevenoakes, who, on the twelfth day of the same month, executed a chattel mortgage of the horse to Dann, the defendant below, under which Dann •subsequently, (but how soon does not appear,) took possession, which is the conversion complained of.

The wife had never given her husband any previous authority to sell the horse; but being with her husband at East Saginaw, they both went, the next morning after the sale, to the house of Sevenoakes, and took breakfast; and while on the way to the house for that purpose, the husband, she says, told her he had sold the horse to Sevenoakes. She was then asked by the defendant whether,’ at any time between that morning and the time when the horse was taken on the chattel mortgage, she informed Sevenoakes that the' horse was her property, and that her husband had no right to sell him.

This question was objected to on the part of the plaintiff, and excluded by the Court. The testimony already given by her tended strongly to show that she- had a good opportunity to have given this notice to Sevenoakes the next morning after the sale, and her subsequent testimony, as well as that of Sevenoakes, tended also to show that this opportunity continued for weeks afterwards, and there was no evidence of a contrary tendency. Her own testimony also shows — and there seems to have been no dispute about the fact — that she also knew that Sevenoakes had not yet paid for the horse at the time when she was informed of the sale. Had she been informed not only of the sale of the horse, but that he had been paid for, she might not, perhaps, have been bound to any diligence in making known her rights; as her silence might not then lead the purchaser into any further act to his prejudice; but, knowing that the husband had assumed to sell the horse as his own, under circumstances not calculated to excite any suspicion of his right, and that payment had not yet been made, she must also have known that her silence would still leave the purchaser under the belief that the horse belonged to the husband, and that he was at liberty to pay the husband, or deal with him as the owner. She could not, then, honestly neglect any fair or convenient opportunity to give early notice of her right, and of her husband’s want of authority, unless she intended to be bound by any payment which might be made to her husband, or any other arrangement the purchaser might make with him in the meantime. She must have known that payment to the husband would be the natural result of her neglect to. give the notice. And if, under such circumstances, she,, having a good opportunity to give the notice, yet refrained-from giving it until payment had been made to. the husband, or the purchaser had parted with property-on the faith of the husband’s right, she should be bound by the acts of her husband, - and suffer the consequences of the error into which her neglect had led the .purchaser ; and to allow her to recover ‘ the price again, after the purchaser had thus paid for it, would be to aid her in the commission of a gross fraud. Under such circumstances, upon every principle of justice, she would be as much estopped as if she had stood by at the sale without objection, and permitted the husband to sell the horse as his own.

The defendant, therefore, had a right to show that he had thus been led into paying the husband for the horse, or parting with property on the faith of the husband’s right, in consequence of her negligence in giving notice of her rights when she had a fair opportunity to do so, and when she knew that payment had not been made. He had, therefore, the right to go fully into the question of delay in giving the notice, her opportunities for giving it, her knowledge that payment had not been made, and the fact of his paying or parting with property on the faith of the husband’s right; and being on cross-examination, it was entirely immaterial which of these facts he should show first. The question proposed was entirely legitimate on cross-examination, as she had testified in chief that she had never sold the horse, nor authorized the husband to sell him, and that, if she had her rights, the horse would still have been in her possession. The Court,. therefore, erred in overruling the question.

It is clear, from the subsequent testimony in the cause, that this error was . calculated materially to prejudice the defence; as it appeared from the testimony of Sevenoakes, which was confirmed > by that of the husband, and which was not disputed, that during the time to which the question referred — that is, between the morning when she was informed of the sale and the time when the horse was taken on the chattel mortgage — Sevenoakes did actually pay the husband for the horse through another trade, which was made between them about the twentieth day of November, and.the note the husband had taken for the horse was given up.

As the record does not purport to give the whole charge, we cannot say it was erroneous. • The charge, as a whole, may have been in accordance with the principles above laid down. But if the whole charge is stated in the record, it was inapplicable to the case, and calculated to mislead the jury. The jury should have been directly told that, if they should find that the plaintiff, having notice of the sale, and that payment was still to be made, neglected to give notice of her rights when she had convenient opportunity to do so, she took upon herself the risk of payment being made to the husband in the meantime; and if they should find that the purchaser had, in good faith, continued to deal with the husband as the only party in interest, and had paid him, for the horse, she would be bound by the acts of her husband as if they had been done by herself.

The judgment must be reversed, with costs, and a new trial granted.

Cooley- J. concurred. Martin Ch. J. did not sit in this case.,