CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF NEW BRUNSWICK

IN

EASTER TERM,

IN THE TWENTY-FOURTH YEAR OF THE REIGN OF VICTORIA.

1861.

CROCKER against HUTCHINSON and ANOTHER.

15th April.

ROVER for timber, tried before Wilmot, J., at the Plaintiff purlast Northumberland circuit.

TRO

chased lumber from J., but before he got

possession, it was and sold under sold an execution

was seized

issued by the

against J. An

been brought

the plaintiff

It appeared that the plaintiff had purchased lumber from one Johnston; but before he got possession of it, it levied on by the Sheriff of Northumberland, and under an execution issued upon a judgment obtained by defendant the defendant Hutchinson against Johnston. An action action having was brought by Johnston against the plaintiff (Crocker), by J. against for the price of the timber, which he defended at Hutch-for the price inson's request, on the ground that the property in the it was agreed timber was bound by Hutchinson's execution, and there-between the plaintiff and fore the sale by Johnston to him passed no title :-Hutch-defendant that inson undertaking to save him harmless, if the action should defend should be decided against him. Johnston recovered in the ground

of the lumber,

the plaintiff

the action, on

that the lumber was right

fully seized under the execution, and that the defendant should save the plaintiff harmless in ease he was unsuccessful in the action, J. recovered in the action, and the present defendant paid him the amount of his judgment:- Held, that the plaintiff, by so defending the action, and inducing the defendant to pay the amount of the verdict to J., was estopped from sueing the defendant for the conversion of the lumber, on the ground that he had no right to levy on it.

that

1861.

CROCKER against

that action, it appearing that at the time of the sale of the timber to the plaintiff, Hutchinson's execution was not in the Sheriff's hands for the purpose of being executed, and HUTCHINSON. Consequently it did not bind the property. Hutchinson paid to Johnston the amount recovered in his action against Crocker; and in subsequent dealings between the plaintiff and defendant, and a settlement of accounts, no claim was made by the plaintiff for this timber. This action was afterwards brought for the wrongful conversion of the timber, which had been so seized and sold under the defendant's execution. A verdict having been found for the plaintiff, for the value of the timber, J. A. Street, Q. C., obtained a rule nisi for a new trial, on the ground that the verdict was against law and evidence.

J. M. Johnson, Q. C., shewed cause in Hilary term last. The sale to the plaintiff, by Johnston, was complete, and delivery made, before the execution against Johnston was put into the hands of the Sheriff, and the sale by him of this property was a conversion. The settlement between. the plaintiff and the defendant Hutchinson, was made irrespective of the claims the plaintiff had upon the Johnston timber. Where there has been a wrongful conversion of property, any agreement or settlement of this kind could only go in mitigation of damages, and could not amount. to accord and satisfaction; and the plaintiff is entitled to the value of the timber sold under the execution, less the amount paid by the defendant Hutchinson on the plaintiff's account. The jury have found that there was no waiver or settlement of the plaintiff's claim, and there has been no legal waiver.

J. A. Street, Q. C., contra. There was not sufficient evidence to justify the jury in finding as they did. The plaintiff waived the tort, by his agreement with the defendant, and by accepting the payment made by Hutchinson in satisfaction of Johnston's judgment. Clarke v. Clarke (a); 2 Greenl. Ev. § 28.

Cur, adv. vult.

(a) 6 Esp. 61.

CARTER,

1861.

CROCKER against

CARTER, C. J., now delivered the judgment of the Court. It is clear that the plaintiff (Crocker), when sued in a former action by Johnston, for the price of the very lumber, the taking of which by the defendant, is the injury HUTCHINSON. complained of by him in the present action, rested his defence against Johnston's claim, on the ground, that the lumber had been rightfully taken by the present defendants, and therefore he was not liable to pay Johnston for that which he had not received, in consequence of such rightful taking. It is also clear that Johnston's claim was so resisted, under an arrangement between Crocker and Hutchinson, by which Crocker was to defend the action, and Hutchinson was to save him harmless from the result of that action, if adverse. Acting on this arrangement, when Crocker failed in defending Johnston's suit with success, Hutchinson pays to Johnston the amount recovered by him against Crocker. In the subsequent dealings between Crocker and Hutchinson, no claim is even hinted at by Crocker, for the improper taking by Hutchinson of the Johnston lumber; and it is after the lapse of several years that the present action is commenced, founded on an alleged right of Crocker, entirely contradictory to, and inconsistent with, the right in Hutchinson, on which Crocker had rested his defence in the Johnston suit, under the arrangement between Crocker and Hutchinson, and which resulted in the latter paying Johnston the amount recovered against Crocker.

It is obvious that the bringing this action, under such circumstances, is contrary to good faith, and what could never have been contemplated by either party, at the time the arrangement was made with reference to the Johnston suit. This alone will not, however, offer a sufficient defence to the action, unless the circumstances fall within some legal principle, which will afford a legal defence to the action. It appears to us that the principle of estoppel in pais, as established by modern cases, will be sufficient for this purpose. Pickard v. Sears (a) may be considered as the leading case on this doctrine; and the law there laid down-modi

(a) 6 A. & E. 474.

1861.

against

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fied by what was said in Freeman v. Cooke (a) as the settled principle of that doctrine. In the first case, it is CROCKER said by Lord Denman, C. J., delivering the judgment of HUTCHINSON, the Court, that where one, by his words or conduct, wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that "belief, so as to alter his own previous position, the "former is concluded from averring against the latter, a "different state of things as existing at the same time." In Freeman v. Cooke, Parke, B., in delivering the judgment of the Court of Exchequer, said that the rule laid down in Pickard v. Sears "was to be considered as estab"lished; but that the term 'wilfully' in that rule must be "understood, if not that the party represents that to be

66

the truth which he knows to be untrue, at least, that he "means his representation to be acted upon, and that it is "acted upon accordingly; and if, whatever a man's real

66

meaning may be, he so conducts himself, that a reason"able man would take the representation to be true, and "believe that it was meant he should act upon it, and did "act upon it as true, the party making the representation "would be equally precluded from contesting its truth." To apply these principles to the case before us: it cannot be supposed that at the time the arrangement was made between Crocker and Hutchinson about defending the Johnston suit, by which Crocker was to rely on Hutchinson's being the owner of the lumber, as the ground of his defence, any reasonable man standing in Hutchinson's position could have imagined, that he was to bear the brunt of the Johnston suit, pay the price of the lumber if Johnston succeeded, and yet be liable to Crocker for the value of the same lumber in an action of trover, in which Crocker would recover on a ground diametrically opposite to that which he agreed to take in defending the Johnston suit, and which was the reason for Hutchinson's indemnifying him against the result of that suit. If Crocker can maintain the present action of trover, for a tort in the improper taking of the lumber by Hutchinson, we cannot

(a) 2 Exch. 654.

see

1861.

CROCKER

see why he should not be entitled to recover the full value of the lumber the payment by Hutchinson of the amount of the verdict in favor of Johnston in the former suit, would against not be an accord and satisfaction of the damages caused HUTCHINSON. by the wrongful taking. But inasmuch as Hutchinson was induced to enter into the arrangement, on the faith of Crocker's setting up his (Hutchinson's) right of property in the lumber, Crocker, it appears to us, is precluded from now assuming an opposite position, entirely at variance with that by which Hutchinson was induced to pay Johnston the price of the lumber. Crocker's assent to stand upon Hutchinson's right to levy in the Johnston suit, led to the latter's paying £287, which he cannot recover back, and would estop Crocker from sueing Hutchinson for damages, on the ground that the latter had no right to levy.

We find the principles above stated, and the case of Pickard v. Sears, recognized in the very recent case of Cairncross v. Lorimer (a) in the House of Lords, in which Lord Chancellor Campbell says: "The doctrine "will apply, which is to be found, I believe, in the laws "of all civilized nations, that if a man, either by words or "conduct, has intimated that he consents to an act which "has been done, and that he will offer no opposition to it, "although it could not have been lawfully done without "his consent, and he thereby induces others to do that "from which they otherwise might have abstained; he "cannot question the legality of the act he had so sanc"tioned, to the prejudice of those who have so given faith "to his words, or to the fair inference to be drawn from "his conduct."

On the principle of estoppel, the plaintiff cannot maintain this action. The verdict must be set aside, and the rule for a new trial made absolute.

Rule absolute.

(a) 7 Jur. N. S. 149.