Citation Numbers: 15 Neb. 114
Judges: Maxwell, Other
Filed Date: 7/15/1883
Status: Precedential
Modified Date: 7/20/2022
On the 2d day of November, 1880, one William Pound held a contract of purchase from the state for the north half of the south-east quarter of sec. 10, township 8, range 6 east of 6th P.M., the contract price being the sum of $720, one-tenth of which had been paid. On that day he went to Mr. Buck staff’s lumber yard, in Lincoln, and represented to him that he was the owner of the land above described and desired to purchase lumber to erect a house for a home on said land; he wanted $500 or $600 worth. On that and the succeeding day lumber to the amount of $261 was sold to him by Buckstaff, being carried away by the teams of the appellant. Being unable to obtain more lumber from Buckstaff, Pound, on the 4th of November of that year, applied to Hoagland Brothers, of Lincoln, and stated that he was going to erect a dwelling on his farm near Centerville — giving the above description of the land, and desired to purchase lumber, which he would pay for within sixty days. Lumber to the amount of $279.46 was there
It appears from the testimony that the only party who had possession of the premises at the time of the sale and assignment of the certificate of purchase was Pound, and that such possession continued without interruption until after the house was erected. It also appears that Dunbar paid the carpenters for building the house, Pound stating that he was unable to do so. , The testimony fails to show that Dunbar notified any of these material men that he was the owner of the premises, although he knew, or at least had cause to know,'that the lumber and material were being furnished to Pound; upon the belief that Pound was
In 1 Greenleaf Ev., § 207, the rule is thus stated: Admissions, whether of law or fact, which have been acted upon by others, are conclusive against the party making them in all eases between him and the person he has thus influenced. It is of no importance whether they were made in express language to the person himself, or implied from the open and general conduct of the party. For in the latter case the implied declaration may be considered as addressed to every one in particular who may have occasion to act- upon it. In such cases the party is estopped on grounds of public policy and good faith from repudiating his own representations. The rule is, that a party who negligently or culpably-stands by and allows another to contract on the faith and understanding of some fact which he can contradict, cannot dispute that fact in an action against the person whom he has assisted in deceiving; as, where a vendor is held out, or is suffered to hold himself out as authorized, the owner is concluded. Stephens. v Baird, 9 Cow., 274. Pickering v. Busk, 15 East., 38. Dyer v. Pearson, 3 B. and C., 38. In the case under consideration, Dunbar not only failed to state to these parties that he had purchased the premises, but assured the Hoaglands that Pound was all right and they would receive their pay. To permit a party to acquire property in this manner, of which others, with his tacit approval, had been defrauded, would be a reproach upon the law. Pound was not a builder, as Dunbar was well aware, and it is very clear that he could not have purchased the lumber upon credit except upon the supposition that he was the owner of the land.
A material fact in this case is the consideration paid by Dunbar to Pound. It appears from Dunbar’s testimony that he sold one-half of a stallion to Pound for the sum of $600. ' Of this sum $200 was to be applied in payment of the land, and $400 to be payment of the house. It also appears that the $400 was secured by a chattel mortgage on the horse. He testifies that the mortgage was given up to Pound after the erection of the house, and that the matter was then settled in full. He afterwards states that in July, 1881, he wrote to Pound “to bring the horse back and fix or there would be Trouble;” that Pound thereupon brought the horse back and he gave him a mule and $200 for his interest. Dunbar thus in fact paid but little more than the value of Pound’s interest in the land as agreed upon by the parties themselves. It is very clear that justice has been done, and the judgment is in all things affirmed.
Judgment affirmed.