
    Fitts v. Brown.
    The admissions of a party making them are not, in general, conclusive against him, except in favor of such as have been induced to act upon such admissions.
    Evidence of a party’s admission is not admissible to vary the effect of a •written contract.
    Trover, for two cows, driven by the defendant from the farm where the plaintiff lived, on the 22d day of March, 1841.
    The plaintiff, to prove property, • introduced an indenture, made on the first day of September, 1824, between himself and Daniel Fitts, reciting, among other things, that Daniel had, for certain considerations, conveyed to the plaintiff the farm referred to, and that the plaintiff had given to Daniel and his wife a lease of it for their lives and the life of the survivor, together with a bond for their support, and for other objects. The indenture then provided, that the plaintiff might occupy and enjoy certain privileges connected with the farm, and that Daniel should “find stock to stock the farm,” &c. It further provided that the plaintiff should deliver and “bring into the house so much of the produce of said farm as shall be necessary” for the support of Daniel and his wife, &c., “ and the over-plus to go to the said Ebenezer Eitts, for his own use.”
    The defendant offered in evidence a bill of sale of the two cows, executed by Daniel Eitts on the 26th day of September, A. D. 1838, to his daughter Sally, who became the wife of the defendant in the month of June, A. D. 1839. The bill of sale included also other stock upon the farm, but'was offered by the defendant for no other purpose than to show that Daniel Eitts conveyed the cows to his daughter Sally.
    Daniel Eitts died in January, A. D. 1841, but Hannah, his wife, is still living. One of the cows descended from a heifer which was owned by him at the time the indenture was executed, and which remained upon the farm afterwards. The other cow was obtained by Daniel Eitts when it was a calf, by exchanging for it a calf which also descended from the heifer above mentioned; and the cows always remained upon the place until driven away by the defendant. The exchange was made by Sally Fitts, by direction of Daniel Fitts. The plaintiff and Daniel Fitts lived on the farm together, and in one family.
    The court instructed the jury that, by the terms of the indenture, Daniel Fitts was bound to stock the farm, and that the stock, when placed by him on the farm in pursuance of the agreement, became so far the property of the plaintiff that Daniel Fitts could not sell them; that the young animals raised upon the farm from them were to be considered part of the produce and income of the farm from which the support of Daniel Fitts and his wife was to be derived: That the surplus, after furnishing them with their support, belonged to the plaintiff; that such part of tbe produce and stock as remained at tbe decease of Daniel would belong to tbe plaintiff' and tbat Daniel Fitts could not convey any title to tbe cows to Sally, bis daughter, by tbe bill of sale aforesaid.
    Tbe defendant read in evidence tbe deposition of Hannah Fitts, who testified as follows: “After my husband conveyed to Ebenezer bis real estate, in 1824, Ebenezer tried to have him convey to him bis stock also, but be refused to do it.”
    Tbe defendant also offered evidence, tbat on tbe day of tbe annual meeting, in March, 1841, one of tbe plaintiff’s creditors asked him to pay him bis debt, but be said be could not. He then asked him if tbe stock on tbe place did not belong to him, and be said no; be bad not any stock. The witness then inquired if be could let him have a cow, and tbe plaintiff said be bad none. He then asked him if tbe cows on tbe place were not bis, and tbe plaintiff answered no.
    Tbe plaintiff was proved to have taken tbe poor debtors’ oath, in October, 1836.
    Tbe court instructed tbe jury tbat this testimony was admissible only as tending to show tbat, subsequent to the date of tbe indenture, tbe plaintiff and Daniel Fitts might have made another contract, whereby tbe property in tbe stock became vested in Daniel, and tbat if they believed such a contract was made they should find for tbe defendant.
    Tbe jury found for tbe plaintiff, and tbe defendant moved to set aside tbe verdict on account of tbe instructions of the court, as aforesaid.
    
      Pills bury, for tbe defendant.
    
      Pell and Tuck, for tbe plaintiff.
   Gilchrist, J.

By tbe terms of tbe contract between Daniel Fitts and tbe plaintiff, Ebenezer Fitts, tbe latter was to occupy the farm, and to have all the produce except so much as should be necessary for the support of Daniel and his wife, which the plaintiff had agreed to deliver and bring into the house for them.

Daniel was to stock the farm, and did stock it; and from one of the animals furnished for that purpose is descended one of the cows which are the subject of this controversy, while the other was derived by the exchange of a calf of the same stock, made by the agency of Daniel and Sally acting under his direction. ' The exchange was made when both the animals were calves, and was acquiesced in by the plaintiff, by adopting- the new acquisition, and raising it with the other animals upon the farm.

Upon this state of the evidence the court instructed the jury that the stock, when furnished by Daniel, and placed upon the farm pursuant to the agreement, became so far the property of the plaintiff that Daniel Fitts could not sell it, and “ that the young animals raised from it upon the farm were to be considered part of its produce and income, from which the support of Daniel and his wife was to be derived; and that the surplus, after furnishing such support, belonged to the plaintiff.”

Ve are of the opinion that it would be difficult to give any other rational construction to the contract. A very large portion of the agriculture of the countiy is devoted to the growth of various kinds of cattle, which are as justly and as uniformly regarded as the produce of the farm, as are the corn, hay, and roots with which they are fed. Upon any other principle of construction in such a case as this, conflicts might arise between the adverse interests of the tenant and landlord, which it would be difficult to adjust upon satisfactory grounds. One party might require all the resources of the farm to he devoted to the growth and increase of stock for the fertilizing of the soil, and the more direct emolument of the owner, while the obvious motives of the other would tend in an opposite direction. It would be but an illusory provision for a party occupying tbe position of tbe plaintiff in tbis case, to give him the surplus crops of tbe farm, if a large portion of tbat surplus could be claimed by tbe landlord for tbe increase of stock for bis own benefit. It seems, therefore, quite plain to us, tbat by tbe produce of tbe farm are included not only tbe crops, but such animals as, coming into existence upon tbe farm, are brought to maturity by tbe pains and care of tbe tenant, and fed by crops which are indisputably bis. Turner v. Bachelder, 6 Shep. 257; Butterfield v. Baker, 5 Pick. 522.

To rebut tbis inference, evidence of the sayings of tbe plaintiff was introduced, and. an exception was taken to tbe ruling of tbe court as to its admissibility.

In general, tbe admissions of a party are evidence against him, and sometimes they are conclusive in their effect; as where they are made upon the record, where they operate by way of estoppel. Sometimes when not of record they have tbe effect of precluding tbe party making them from disputing them, as where others have been induced by them to act otherwise than they would have done but for such admissions. Welland Canal v. Hathaway, 8 Wend. 483; Davis v. Sanders, 11 N. H. 259; Tufts v. Hayes, 5 N. H. 453.

In tbe case last referred to, which was trespass against a sheriff for taking tbe plaintiff’s cow, it appeared tbat tbe plaintiff bad made declarations tbat be owned another cow then in bis possession; and it was held tbat tbe declarations must have been made under such circumstances as to give tbe defendant a right to consider both cows as bis property, and as to make a denial of tbe declarations in tbe action inconsistent with good faith and honest conduct, in order to estop tbe plaintiff, and tbat tbe mere fact tbat be made them was insufficient for tbat purpose.

In another case, the plaintiff advanced ¿67,500 to one Knight, who, as collateral security, gave him an order on the defendants for some malt. They acknowledged in writing that they held the malt on account of the plaintiff and Lord Fllenborough held them estopped as against the plaintiff from denying- that they so held it. Stonard v. Dankin, 2 Camp. 344.

The same principle is affirmed in many eases: Hallesten v. Johnson, 4 Wend. 642; Wallis v. Truesdell, 6 Pick. 455; Deniger v. Sauzer, 6 Wend. 436, 437; Davison v. Franklin, 1 B. & Ad. 142; Hall v. White, 3 C. & P. 136; Champlin v. Butler, 18 Johns. 169.

But the estoppel, or disability to show the truth against the admission, prevails only in favor of the party who has been drawn in by the act, or admission, and 'cannot be availed of by strangers, or such as could not have been imposed on.

Thus the plea of nolo contendere does not estop the party from disputing, in a civil action, the truth of the facts charged in the indictment. Commonwealth v. Horton, 9 Pick. 206.

The certificate of A. that he had purchased a vessel of B. was held not to conclude A. in a suit drawing the - sale in question, but that A. might show an agreement at the time that a bill of sale was to be executed in order to complete the purchase. Higgins v. Cheseman, 9 Pick. 7. The same principle is asserted in Stone v. Swift, 4 Pick. 489.

And where the admissions of the plaintiff were not made with a view to influence the conduct of the defendants, and did not in fact influence it, and they did not act upon such admissions, the plaintiff is not estopped. Wallis v. Truesdell, 6 Pick. 457.

The admissions of the plaintiff in this case do not fall within the definition of any that have been held to be conclusive of his rights in the matters to which they relate.

It is equally clear, upon reason and authority, that they are not admissible for the purpose of controlling the effect of the written contract between the parties. Their admission would conflict with that established rule of evidence which precludes the use of parol testimony for such purpose. Its effect, moreover, would be only to show the, party’s misapprehension of his rights under the contract— a subject upon which he might well be mistaken without prejudice to those rights. 1 Gr. Ev., sec. 95; Moore v. Hitchcock, 4 Wend. 492; Boston Hat Man. Co. v. Messinger, 2 Pick. 240.

The effect which could lawfully have been given to the evidence appears to us to have been stated by the court with a latitude sufficiently favorable to the defendant. Austin v. Sawyer, 9 Cow. 39.

There must, therefore, be

Judgment on the verdict.  