Chase v. Deming , 42 N.H. 274 ( 1860 )

Bell, C. J.

The declaration was general for goods sold and delivered, &c. The two defendants sued (Holt and Deming) pleaded that the promises were made by them jointly with Tillotson, who is still living. On this plea in abatement issue was joined, and the case tried. ■

The defendants claimed, and were allowed the right to open and close, and we think rightfully. The burden of proof upon the only matter in controversy upon the pleadings was upon them. Jewett v. Davis, 6 N. H. 520; Chesley v. Chesley, 37 N. H. 229.

It appeared that the contracts, out of which the defendants’ indebtedness grew, were made by Holt, in the name of D. Holt & Co. The plaintiff, having no previous knowledge of the firm, or of the partners, inquired of Holt who the members of the firm were, and was told by him they were himself and Deming. And at the same interview, Holt gave him the names of himself and Deming, and their residences, in writing, so that he could write to them. Chase insisted that, till the suit was brought, he relied upon that information, and knew nothing of any other partner. The court charged the jury that, if they found the facts to be so, Holt and Deming would be estopped to maintain their plea.

Declarations, statements and admissions, which have been acted upon by others, are conclusive against the party making them, in all cases between him and the person whose conduct has been thus influenced, and who would suffer injury by their denial. In such cases the party is estopped on grounds of public policy and good faith, from repudiating his own representations. 1 Greenl. Ev. 240, sec. 207; 2 Smith’s L. C. 642; Simons v. Steele, 36 N. H. 73.

An estoppel is so called, says Nelson, C. J., (Welland Canal Company v. Hathaway, 8 Wend. 483) because a man is concluded from saying any thing, even the truth, against his own act or admission. A technical estoppel can only be by deed, or matter of record ; but, it is said, such acts or admissions should operate by way of estoppel— an estoppel in pais. Such estoppels can not be pleaded, but are given in evidence to the court and jury, and may operate as effectually as a technical estoppel, under the direction of the court; and he cites Co. Litt. 352; Vin. Ab., Tit. Estoppel, 422; 19 Johns. 490 ; 1 Gilb. Eq. 87.

The charge of the court, in this respect, seems to us entirely correct and proper.

It has been decided in this state, in conformity to what we regard as the rule of the common law, that, upon an issue of fact upon a plea in abatement being found for the plaintiff, the judgment will be peremptory and final; Jewett v. Davis, 6 N. H. 518; and the jury who find the verdict must at the same time assess the plaintiff’s damages. Eichorn v. Lemaître, 2 Wils. 367; 2 Saund. 210, (g) n. 3; Dodge v. Morse, 3 N. H. 232; McCarty v. Chambers, 6 Wend. 650; Boston Class Manufactory v. Langdon, 24 Pick. 54; 2 Greenl. Ev., sec. 27.

As these questions were considered and decided by the court in this case upon the same state of facts, at the December term, 1859 (22 Law Pep. 609), it seems the main reliance of the defendants’ counsel for a new trial is upon the ground that evidence tending to disprove a part of the plaintiff’s claim for damages was rejected by the court.

It is contended by the defendants that, though upon an issue of fact joined upon a plea in abatement, and found for the plaintiff, the cause of action alleged must be regarded as admitted ; yet, as the declaration in this case is in general assumpsit, no definite amount of indebtedness is admitted. The amount of damages to be recovered is, therefore, the subject of proof on both sides, as it would be in case of a default, or a judgment for the plaintiff on demurrer; and we think this position is well founded. It is fully sustained by the authorities cited for the defendant. Mechanicks Bank v. Dakin, 24 Wend. 411; Webb v. Webb, 16 Vt. 636; Eichorn v. Lemaître, 2 Wils. 367; Frye v. Hinkley, 6 Shep. 320; and Dodge v. Morse, 3 N. H. 132; Barnes’ Notes 233; Imp. Mod. Prac. 463.

For this cause the verdict must be set aside. So far as we can judge from the case, this defect may probably be remedied by a remittitur of the amount to which the rejected evidence applied.

It is objected that the verdict does not find the issue on trial. The plea alleged that the promises declared on were made by the defendants and Tillotson, and not by the defendants alone. The plaintiff replied, that the promises were made by the defendants alone, as the plaintiff has complained, &c. ; and the verdict is, that Holt and Deming did promise in manner, &c., as the plaintiff has declared, &c.

The rule is, that if the point on which the verdict is given is so uncertain that it can not be clearly ascertained, whether the jury mean to find the issue or not, it can not be helped by intendment. 1 Mason 170; Com. Dig. Pleader S. 22 ; 11 Pick. 45; 3 Pick. 124; Jewett v. Davis, 6 N. H. 521; Eames v. Stevens, 26 N. H. 121; Allen v. Aldrich, 29 N. H. 75; Litchfield v. Londonderry, 39 N. H. 253; Odlin v. Gove, 41 N. H. 465.

If this verdict fails to find the precise point of the issue, it is one of those cases where “ the finding of the matter in issue may he concluded out of it,” in which the verdict is held to be sufficient. Pettes v. Bingham, 10 N. H. 514; Holman v. Kingsbury, 4 N. H. 106; Foster v. Jackson, Hob. 54; Pope v. Skinner, Hob. 72; Co. Litt. 282, a.

The verdict must be set aside, unless the court, at the trial term, shall allow a remittitur of the amount to which the rejected evidence applied, in which ease,

Judgment on the verdict.