Downer v. Flint , 28 Vt. 527 ( 1856 )

The opinion of the court was delivered by

Redeield, Ch. J.

I. The decision in regard to costs seems to us correct. Each defendant, in actions of tort, has been treated as a distinct party in the suit, until by joining in a plea in bar, with others, or in some other way, he so identified his interests with others, that the success of the defense, as to each one, depended upon its success, as to all. This will entitle them to tax separate travel and' attendance, before the justice, and separate travel and term fees, in the county court., ' The attorney fee is given, on account of the trial, and no more attorney fees are taxable upon the same side than there are distinct trials in the action. The general issue, in actions of tort, is regarded as several, although in form joint. In the present case the plea before the justice was, in form, several, and, not being renewed before the county court, might still be regarded as in force", the same as a declaration. But the result is the same either way.

H. In regard to the merits of the case, we must, for the purpose of testing the correctness of the decision below, assume that the plaintiff was the owner of the sheep, at the time they were taken, as there was testimony tending to prove this. We must, also, lay out of the case what the plaintiff said to Ellsworth, as the case was made to turn upon the transaction with Flint.

It seems to us the extent and force of the transaction is to depend upon the legal understanding of what passed. Did, then, the parties understand that the plaintiff there made any abandonment of his claim, upon which the defendant was induced to change his course of action ? and, if so, to what extent was the claim abandoned ? Did it extend to the whole claim, or only to the sheep, and not the wool ?

I. It seems to us difficult to so construe the case that it shall fairly appear, upon the defendant’s testimony upon this point, (which is now all that is under consideration,) that he did not chánge his course of action, upon the plaintiff’s assertion that he Was not the owner of the sheep, and had no claim to, or interest ip them. For the defendant seems to have made that an express condition of the sale of the sheep to the plaintiff. Flint said he ■wanted no litigation about them, and, if the plaintiff owned them, he would deliver them up to him; and, the case adds, that after these mutual declarations, “ that the plaintiff then purchased the sheep.” That must signify something more than that he purchased the sheep, at that time, immediately after this conversation. It can signify nothing less, in the connection, than that the defendant would not sell until the question of the plaintiff’s claim was quieted and settled, or abandoned, and that the sale was finally closed upon this express understanding. This being so, the claim, however valid it may have been, was abandoned understandingly, and upon sufficient consideration; the defendant having been induced to act upon the assurances, and it cannot now be revoked. The plaintiff is forever barred from asserting the claim which he then abandoned.

2. But a question is made whether the entire claim was really understood to be abandoned. But it seems to us the parties must have understood the abandonment as extending to the entire claim for the sheep, as taken, with the wool upon them. The defendant said he wanted no litigation about them, that is, the sheep, as taken, of course. For it would be absurd to suppose that he meant only the sheep, and not the wool. That would leave the entire litigation, as much as if the sheep were not settled for. The declaration, too, that if the plaintiff owned them he would deliver them up to him, must, to be reasonable, include both the sheep and the wool, for nothing less would quiet litigation. The plaintiff’s declaration, too, on this occasion, that “ he was not the owner of the sheep, and had no claim to, or interest in them,” could signify nothing less than an abandonment of all claim to the sheep, when taken, and, as taken. ' And this was the condition upon which the sale was effected. And, if binding at all, it is binding to the full extent.

For if the defendant was not entitled, as of right, to return the sheep and wool, there can be little question, on the defendant’s proof, it would have been then accepted, if offered. At all events, the party was entitled to make the attempt to buy his peace, and by reason of this abandonment of all claim, it is fair to presume, the defendant has been induced to sell the sheep to the plaintiff, and to forego all efforts to compromise the matter in any other way, and has incurred the expense and hazard of defending this suit. This, it seems to us, renders the estoppel sufficiently binding to the fullest extent.

If we limit the binding force of the estoppel to the loss incurred in faith of it, it will cover the plaintiff’s whole claim. For nothing less will place the defendant in the same situation he would have been, if the assurance had not been given by the plaintiff and acted upon by the defendant.

Judgment affirmed.