Noonan v. Ilsley , 22 Wis. 27 ( 1867 )

Paine J.

There was no error in admitting the evidence of Newhall to prove the value of the stock. Statements as to value are always more or less matter of opinion, except perhaps in questions concerning a market value. But this is one 'of -the established exceptions to the rule prohibiting witnesses from giving their opinions. The value of property cannot be satisfactorily proved in any other way. We think the witness showed sufficient acquaintance with the property, to admit his statements as to its value. He was “ in the road,” as he expressed it, and he dealt extensively in the stock during the summer of 1856. The inquiry related to the value of. the stock on the 22d of June, 1856, and this was bringing the knowledge of the witness as near to the exact time as was practicable. It was entirely similar in its character, to the evidence offered by the defendant on the same subject. The defendant himself testified to the value on tbe 3d of May, more tban a month and a half before tbe time in question. It would probably be found tbat in a great majority of cases where witnesses are allowed to give their opinions as to the value of property at a particular time, they would not. be able to show a knowledge derived from dealings at that time, but would base their opinions upon transactions occurring at about the time, before and after.

Nor was the plaintiff estopped from denying the validity of his deed to Hasson. Concede that it was a fraud upon the law for the plaintiff to execute that deed and put it upon record for the purpose of bringing suits in the United States court, in Hasson’s name: yet if the deed was in fact a nullity for want of .delivery, and if the defendant got a good title, notwithstanding that deed, then the fact that the plaintiff had formerly perpetrated a fraud upon the law, is not a sufficient reason why the defendant should not pay for his land. Suppose A sells to B some article of personal property, for which B gives his note. In an action on the note, B could not defend by proving that at some former time an officer had gone to A with an execution, and was about to levy on the property, and that A had told him that he was not the owner of it. The fact that A had perpetrated a fraud on the officer, would have no bearing upon the ques-tion whether B ought to pay his note, because B would not have been affected by it. So here the defendant has not been affected by the execution and recording of the Kásson deed. He did not act upon it, and did not know of its existence, as appears from his supplemental answer, until after he had determined to defend against this action, and had served his answer. But his counsel claims an estoppel by reason of the fact that after discovering the Hasson deed, the defendant,'relying on it, amended his answer and set up a failure of title. And he relies upon the following cases: Hall et ux. v. White, 3 Carr. & Payne, 242; Church v. Williams, 9 Wend., 148; Divoll v. Leadbetter, 4 Pick., 220; Doe ex dem. Eyre v. Lambly, 2 Esp., 635; and Price v. Harwood, 3 Campb., 109. But in all those cases the statement which was held to create the estoppel was a personal communication made by the party estopped to the other party, on a direct application by the latter for information by which to regulate his own conduct in the matter. Here nothing of that kind existed. The defendant did not determine to defend this action at all on the faith of the Hasson deed; because, as already stated, he had served an answer before he learned of that. But even if he had, the record of that deed was not such a fact that he had a right to treat it as a personal communication made by the plaintiff to him upon the subject, for the purpose of enabling him to determine whether or not to defend the action. If he had applied to the plaintiff for information on the subject, and the plaintiff had told him that the title was in Hasson by virtue of that deed, it would have beep, more nearly like the cases cited. But the record of the deed might have been explained in various ways. Hasson might have re-deeded to the plaintiff, and that deed not been recorded, and yet the defendant would have had as good a right to rely on it as an estoppel in that case as in this.

Suppose a man conveys land with a covenant against incumbrances. The purchaser afterwards finds the record of a mortgage and no release. Could he, relying on that alone, pay the amount of the mortgage to the mortgagee, and bring an action on the covenant, and estop his vendor from showing that the mortgage had been paid and released, though the release was not recorded? Clearly not. And the reason is, that he would have no right to act upon the mere record in such a matter, as he would upon a direct statement by Ms vendor tbat tbe mortgage was a valid outstanding mortgage.

In the remarks above made, distinguishing tbis from the cases cited, I bave assumed tbat in the case in 9 Wend., 147, the statements relied on as creating the estoppel were made before the action was commenced. the case says they were made at the time of serving the declaration. But if they were made after the service, and the plaintiff bad commenced the action before those statements, and without being influenced by them, I do not think the case can be sustained upon principle.

There are other reasons which, I think, distinguish some of those cases from tbis, but it is not necessary, to comment on them further.

Under our statute, tbe costs in actions at law follow tbe recovery. And there would be no way in which tbe plaintiff could be denied tbe costs of tbe action, without bolding tbat be was estopped from denying tbis defense at all. But here there seems no réason to make any distinction between tbe question of costs and tbe merits of tbe defense; because tbe defendant did not decide to defend tbe action by reason of tllis deed.

The release from Kasson seems to bave been immaterial. the plaintiff swore tbat be never delivered the deed to Kas-son, and Kasson swore so too, and tbat be never accepted it, and bad no knowledge of it. There was no evidence to the contrary. And upon tbis evidence the jury could not bave found tbat Kasson acquired any title by tbat deed. Tie therefore had nothing to release. And whether the release offered was executed in such manner as to bave made it admissible, provided it bad been material, it is unnecessary to determine. A judgment will not be reversed for the erroneous admission of immaterial evidence, unless the court can see tbat the rights of the party were probably prejudiced by it.

Nor was there error in excluding the power of attorney from Hasson and wife to Noonan, authorizing him, among other things, to sell and convey these lots. If that power of attorney had been executed after the date of the deed from Noonan to Kasson, it would clearly have been admissible as tending to show that Hasson claimed under that deed. But the date of this power of attorney was May 26, 1851, and the plaintiff’s deed to Hasson was not made till 1852. Counsel conceded on the argument that this power of attorney had no tendency to show that Hasson claimed under that deed, but held that it should have been admitted because it contradicted Hasson in his. general statement that he never claimed title to those lots. He made that statement in answer to questions whether he claimed under the deed from Noonan. That was all that was material. If he had formerly owned them before Noonan acquired title, that was immaterial, and he could not be contradicted as to immaterial matters.

Nor had this instrument any tendency to prove that Noonan was Hasson’s agent for the purpose of accepting a delivery of the deed from himself, and thus give it validity. It assumed that the title was in Hasson at the time of its date, and gave Noonan authority to convey it for him. But the theory that Noonan was Hasson’s agent afterwards to accept a conveyance of these .very lots to Hasson from Noonan, assumes that Noonan had acquired the title, an assumption directly repugnant to the power of attorney, and which it had no tendency to show.]

Neither was there any error in proving that the defendant had conveyed to Silkman, and introducing the evidence in regard to the possession of the defendant and his grantees. If he acquired possession by the conveyance from the plaintiff, he would be bound to show an eviction by paramount title, in order to get more than nominal damages for breach of tbe covenant. This evidence was therefore proper on- the question of damages in any event; and the plaintiff was not bound to plead those facts in order to admit them for that purpose.

We think there was no error in the trial, and that the judgment must be affirmed, with costs.

By the Court. — Ordered accordingly.