
    Ezra W. Jackson vs. Elijah Pixley.
    A defendant in an action of trover, who has induced the plaintiff to believe when demanding the property that it was in his possession and control, is not thereby estopped in law from proving the contrary.
    This was an action of trover, brought in the court of common pleas, to recover the value of a pair of horses claimed by the plaintiff, and alleged to have been converted by the defendant to his own use. The defendant pleaded the general issue, and filed a specification of defence, that he never owned the horses, and never .had the control or possession of them, but that they belonged to one John Pixley, a son of the defendant.
    The plaintiff offered evidence that the horses were his, and that he had the right of possession at the time of the alleged conversion. To prove the conversion by the defendant, the plaintiff introduced evidence, by one Edward Day, that, prior to the date of the writ, the plaintiff, hearing that the defendant had the horses, went to the house of the 'defendant, and, in the presence of Day, asked the defendant if he had the horses, and if he had got them of a man from Otis, and the defendant replied that he had the horses in his barn, and that he had them of a man in Otis. The plaintiff then told him that he claimed the horses as his property, and asked the defendant to deliver them up to him. Whereupon the defendant said he had bought the horses and paid for them, and no man could have them. The plaintiff then told the defendant he should sue him, unless he delivered the horses to him, but the defendant refused, and the plaintiff was about leaving, when the defendant said he did not want a lawsuit, and if the plaintiff would wait a day or two, he, the defendant, would see the man in Otis about the matter, after which this suit was brought.
    The defendant introduced the testimony of his son, John Pixley, and others, that John bought the' horses of a man in Otis, with his own property, and that, at the time of the plaintiff’s demand, they were the property, and in the control and possession of John, and kept by him at his father’s barn, and not the property nor in the possession of the defendant. There was testimony that John was then only nineteen years of age, and that the horses were in the barn of the defendant, occupied and possessed by the defendant, and that John was then living with his father.
    On the above evidence, the plaintiff requested the presiding judge, Byington, J., to instruct the jury, as matter of law, that, if the defendant was in any way apparently concerned in the detention, when applied to for the restoration of the horses, and by his answer induced the plaintiff to believe that he had the possession and power to deliver them up, and refused to do so, and the plaintiff was thereby induced to sue him, he could not defend, on the trial, on the ground that he had not, when applied to, the control and disposition of the horses. The judge refused so to instruct the jury, but instructed them that this would not in law estop the defendant from showing that he was not in fact concerned in their detention, and had not the control and possession of the horses at the time of the demand, but was evidence for their consideration, and for their determination how far conclusive to show he was concerned in their detention and had the possession and control of them, and, if satisfied he had control and possession of them, and, on demand made, he refused to deliver them, the plaintiff might maintain his action against him; but if, upon the whole evidence, they were satisfied he did not purchase them, and had not the possession and control of them, the plaintiff could not recover, though the plaintiff was induced by the defendant’s answers to believe he had possession, and that it was in his power to deliver them to him, and so sued the defendant.
    A verdict was rendered for the defendant, and the plaintiff filed his exceptions.
    
      M. Wilcox, for the plaintiff.
    The defendant, by his own declarations, admissions and conduct, induced the plaintiff to believe that the defendant had possession and control of the horses, and was thereby estopped to deny the facts which he had induced the plaintiff to believe, and upon which the plaintiff had acted. 3 Stephens’s Nisi Prius, 2686; Hall v. White, 3 C. & P. 136; Cowen & Hill’s Notes to Phillipps on Ev. vol. 2, pt. 1, 205, 206, and authorities there cited; Price v. Harwood, 3 Camp. 108; Platt v. Squire, 12 Met. 494; First Presbyterian Congregation in Salem v. Williams, 9 Wend. 147.
    J. Sumner, for the defendant.
   By the Court.

The question of conversion was a question of fact for the jury, and as such it was left to them on the evidence. The fact that the defendant said, in the first instance, that the horses were his, and that he bought them and had the possession and control of them, was strong evidence against him, but it was not conclusive ; and the court could not, therefore, charge as matter of law, that it was.

Exceptions overruled  