the deceased had failed to pay his assessment after legal notice. The answer was insufficient, in that it failed to set out the facts showing such notice, while the allegation that the notice was legal was a mere conclusion of law.58 When the answer claims that a benefit certificate was issued in violation of the rules and by-laws of the society, a copy of such rules and by-laws should be set out. It is not sufficient for the pleader to give his own conclusions as to their effect.54 A special plea, that plaintiffs permitted the building to be used for purposes, which increased the risk of loss by fire, without stating what such purposes were, is deficient in particularity.55 Where the defense is, that the plaintiff did not have the absolute ownership of the property insured, the interest of plaintiff must be set out in the answer; a general allegation of false representation as to the title is not sufficient.56 An answer, attempting to set up concealment of material facts and false representation, but giving no particulars, is insufficient; such misrepresentations must be set out and their materiality shown.58 In pleading a forfeiture the defendant must allege every fact necessary to show a forfeiture.59 A policy provided for appraisers in case of disagreement as to the amount of the loss. The complaint alleged con pliance with all the provisions of the policy. The defense was that the action was prematurely brought, because no appraisement had been made, though the defendant had served notice of a demand for one. The answer was adjudged insufficient, because it did not admit a liability for something and that there was an actual disagreement as to the amount of the loss.60 A defense that the proof of loss was not furnished within sixty days after the fire, as required by the policy, is not sufficient, unless it also alleges such production to be a condition precedent to a recovery. When the facts, upon which the statute of limitations is predicated, do not 61 53 Coyle v. Kentucky, etc. Soc. (Ky. Jan. 1887), 2 S. W. Rep. 676. 54 Gray v. National B. Assn., 111 Ind. 53. 55 Hoffecker v. New Castle, etc. Co., 5 Houst. 101. 56 German Ins. Co. v. Hunter, (Tex. Civ. App. Sept. 1895), 32 S. W. Rep. 344. 57 American, etc. Co. v. Barr, 68 Fed. Rep. 873. 58 Caplis v. American, etc. Co., 60 Minn. 376. 59 Forchaud v. Niagara Ins. Co., 58 Ill. App. 161. 60 Liverpool, etc. Co. v. Hall, 1 Kan. App. 18. 61 Continental Ins. Co. v. Chase (Tex. Feb. 1896), 43 S. W. Rep. 92. appear in the petition, but such plea is interposed in the answer as a defense, the time when the statute began to run must be definitely stated.62 When the defense to a suit on a benefit certificate alleges that it was procured by false statements to the medical examiner and the concealment of material facts concerning his death, evidence of the particular disease from which he was suffering is admissible. An answer is sufficient, which apprises the plaintiff of the nature of the defense relied on, so that he may prepare to meet it and may avoid surprise at the trial. 63 A denial of ever making the contract will not allow proof of facts, giving the defendant a right to avoid it after it was executed. A defense, that the insured property was burned by a fire caused by the culpable negligence and carelessness of the plaintiff, is not admissible, when the answer sets forth no facts showing that the negli gence was willful or fraudulent.65 If fraud is the defense, the facts, showing wherein it consisted, must be stated.66 A plea, relying upon fraudulent representation or concealment should aver that the misrepresentation or concealment was material to the acceptance of the risk or the rate of insurance, and should point out in what the insecurity consisted and how the risk was greater.67 Supreme Court of Errors of Connecticut. The owner of a vehicle, who permits her brother to use the same in his business for the delivery of goods, and who, knowing that he has painted his name and occupation thereon, makes no objection, is not thereby estopped, as a matter of law, to assert her title as against a subsequent attaching creditor of the brother. HAMERSLEY, J.: The defendant's answer sets up in defense an equitable estoppel. It alleges that Bryan, Miner & Read brought an action against George W. Larkin, brother of the plaint iff, in the service of which the defendant, a deputy sheriff, attached the goods described in the complaint; that the action was brought to collect $380, the value of merchandise sold said Larkin on credit; that said firm were induced to give the credit by reason of their belief that said Larkin owned the horse, wagon, and harness attached; and that this belief was caused by conduct of the plaintiff equivalent to a representation to the firm by the plaintiff that the property attached belonged to George W. Larkin. The allegations of material facts constituting such conduct are contained in paragraph 6 of the answer, which is as follows: "The plaintiff had full knowledge that the said George W. Larkin was engaged in said business at said place in his own name, and that he had not sufficient capital to conduct said business, and was compelled to purchase large quantities of goods on credit. She also had full knowledge that the words 'George W. Larkin. Meats,' were printed in large letters on the windows of said building; and that for the purpose of assisting and enabling the said George W. Larkin to carry on said business in his own name at said place, and to purchase on credit goods, wares, and merchandise to be used by him therein, the plaintiff delivered to him the horse, harness, bell, and wagon aforesaid, in order that be might use the same in the prosecution of said business; and then knowing that the use of said horse, harness, bell, and wagon with the name of said 'George W. Larkin. Meats,' printed on said wagon, would induce those persons who should sell goods, wares, and merchandise to the said George W. Larkin on credit to believe that he was the owner thereof; and also knowing that the said George W. Larkin, from and after the date of such delivery, did obtain from various persons goods, wares, and merchandise on credit, and which were used by him in the prosecution of said business; and also knowing that the use and possession of said horse, harness, bell, and wagon with the name 'George W. Larkin' printed thereon as above described did in fact enable him to obtain on credit such goods, wares, and merchandise as he needed from time to time in said business, and which credit was given to the said George W. Larkin by reason of the fact that his name was printed on said wagon." This paragraph was denied, and the court found the issues for the plaintiff. The finding details the evidential facts upon which the trial court reached its conclusion that the conduct of the plaintiff as proved did not estop her from asserting her ownership of the property attached. We think the conclusion was supported by the facts detailed, but it is only necessary to discuss it in respect to the claim that certain of the subordinate facts found demand, as a matter of law, a different conclusion. When the representation claimed as having induced a party to change his position in reliance on its truth must be established by proof of a course of conduct, and especially when such conduct con sists in a mere omission or negligence, the question of intention is largely one of fact. Morgan v. Farrel, 58 Conn. 413, 426, 20 Atl. Rep. 614; Starkweather v. Goodman, 48 Conn. 101, 105; Moore v. Bowman, 47 N. H. 499. And so it was in the case at bar. The plaintiff owned a horse, wagon, and harness. She permitted her brother to use this property in connection with his business of carrying on a market and grocery. The brother, without her knowledge, painted on the wagon the words, "George W. Larkin. Meats." Neither the plaintiff nor her brother ever asserted that these words meant a proclamation to the public that the brother owned the horse, wagon, and harness, and neither of them ever represented to any one that the brother owned, or had any interest in, the property. After the words had been painted, the plaintiff saw them, but made no objection or reference to the matter. The plaintiff's conduct was in entire good faith, without any anticipation that the property would be liable to attachment for her brother's debts, or that her action would in any manner tend to deceive his creditors or give him any false credit. Upon these facts, in connection with the other finding of the court that the plaintiff had no interest in her brother's business, the court refused to find that the plaintiff put the property in her brother's possession with intent that whoever might see it in his possession should act upon the presumption that her brother owned the property. In this, we think, the court did not violate any controlling rule of law. Permitting a market man to deliver his goods with a team not his own is not necessarily an assertion that he owns the team. It is quite distinguishable from placing in his custody goods which it is his business to sell. "John Smith. Meats," painted on the delivery wagon used by a marketman, may, under some circumstances, tend to support an assertion of title, but it is not necessarily nor ordinarily more than an advertisement of his business. These acts do not necessarily carry a declaration to all the world that John Smith owns the wagon he is driving. It is not so clearly the natural result of such possession to induce reasonable men, on that ground, to give a credit to the possessor they otherwise would not give, as to impose, in every case, upon the real owner, a duty which he is bound in conscience to perform, of putting a stop to the possession, or of erasing the advertisement from the wagon. These things are evidential facts, of more or less weight, according to the circumstances of each particular case, tending to prove that the real owner did put the property into the possession of another with an intention to represent an actual ownership in the possessor, and to induce others to act upon that representation as true; but they are not in themselves, as matter of law, conclusive evidence of this essential element of an equitable estoppel. The doctrine of estoppel in pais especially concerns conscience and equity. Where one of two innocent persons must suffer, it is frequently, perhaps generally, equitable that the loss should fall upon the one who has been the cause of the injury, rather than upon the other, who is not only innocent, but without fault in the matter. And so, in applying the principle stated by Lord Denman in Pickard v. Sears, 6 Adol. & E. 469, we have held that: "Whatever the motive may be, if one so acts or speaks that the natural consequence of his words or conduct will be to influence another to change his condition, he is legally chargeable with an intent, a willful design, to induce the other to believe him, and to act on that belief, if such proves to be the actual result. And for the same reason-i. e., that the "doctrine of estoppel in pais is so purely a doctrine of practical equity" -we have also held the imputing in each particular case, to a person whose course of action is unaccompanied by fraud or any culpability, knowledge of consequences that may follow his conduct, is not wholly subject to abstract formulas, but depends somewhat on the actual equities of the case. Preston v. Mann, 25 Conn. 118, 128; Taylor v. Ely, Id. 250, 258; Danforth v. Adams, 29 Conn. 107, 110. As stated by Baldwin, J., in a recent case: "An equitable estoppel does not so much shut out the truth as let in the truth, and the whole truth. Its effect is not to support some strict rule of law, but to show what equity and good conscience require under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties." Canfield v. Gregory, 66 Conn. 9, 17, 33 Atl. Rep. 536. Applying the principle of these cases to the finding of the trial court, we think its conclusion is a conclusion of fact in harmony with the settled law of estoppel in pais. It is by no means clear that the facts proven do not fail to support other essential elements of an equitable estoppel, but the one considered is fatal to the defendant's claim. The plaintiff's knowledge of an attachment by Dillon & Douglass, which attachment was directly released, as stated in the finding, cannot affect the result. This is a matter that arose subsequent to the credit given by the creditors claiming the benefit of an estoppel, and is entirely insufficient to support any theory of a declaration by the plaintiff at the time of the defendant's attachment that the goods attached belonged to George W. Larkin. There is no error in the judgment of the court of common pleas. The other judges concurred. NOTE. The general proposition of law governing questions of equitable estoppel may be stated as follows: Where the owner or person having an interest in property represents another as the owner or permits him to appear as such or as having complete authority over it, he will be estopped to deny such ownership or authority against persons who, relying on his representations, or silence, have purchased or acquired interests in the property. Powers v. Harris, 98 Ala. 410; Jones v. Phelps, 33 Ark. 465; Winton v. Hart, 39 Conn. 16; Pool v. Lewis, 41 Ga. 162, 5 Am. Rep. 526; Roberts v. Davis, 72 Ga. 819; Osborne v. Elder, 65 Ga. 360; Miles v. Lefi, 60 Iowa, 168; Stewart v. Munford, 91 Ill. 58; Bobbitt v. Shryer, 70 Ind. 513; Alexander v. Ellison, 79 Ky. 148; Sebright v. Moore, 33 Mich. 92; Chapman v. Pingree, 67 Me. 198; Rice v. Bunce, 49 Mo. 231, 8 Am. Rep. 129; Hawkins v. Methodist Church, 23 Minn. 256; Horn v. Cole, 51 N. H. 287; Howland v. Woodruff, 60 N. Y. 73; Redman v. Graham, 80 N. C. 231; Burton's Appeal, 93 Pa. St. 214; Dunlap v. Gooding, 22 S. C. 248; Kirk v. Ham. ilton, 102 U. S. 68. Pickard v. Sears, 6 Ad. & E. 469, i the leading English case on equitable estoppel. The rule applies where the owner of an unnegotiable chose in action confers upon another, the apparent, absolute ownership, and the latter sells the same to an innocent purchaser for value. Hentz v. Miller, 94 N. Y. 64; Moore v. Met. Bank, 55 N. Y. 41; Combes v. Chandler, 33 Ohio St. 178. The very recent case of O'Conner's Admr. v. Clark (Pa.), 32 Atl. Rep. 1029, 170 Pa. St. 318, is in the facts involved, very similar to the principal case herein, and though at first glance the conclusion of the court in the Pennsylvania case seems to be opposed to the holding of the Connecticut court, a study of both will easily reveal the distinguishing feature. In the Pennsylvania case it was held that where the owner of a wagon allowed another to paint his name and occupation thereon for the purpose of inducing the public to believe that it was the property of such person, the owner is es topped to deny the title of such person as against one who, acting with due caution, and good faith, and be ing thus misled as to the ownership, buys it of such person parting with value therefor. The following are some of the very recent cases on the subject of estoppel by negligence in clothing a person with title and authority as to personal property: A father who is present when his son executes a mortgage on per sonal property, and who has previously informed the mortgagees that he has given the property to the son to enable him to mortgage it for supplies to crop, is estopped, as against the mortgagees, from asserting that the gift had not been completed by s technical delivery of the property. Foreman v. Weil (Ala.), 12 South. Rep. 815. The mere fact that the owner of property has intrusted the possession of it to another will not estop him from asserting his own. ership against one who purchases from the bailee in the belief that such bailee was the owner. Baker v. Taylor (Minn.), 55 N. W. Rep. 823. Where the owner of a horse puts it in the possession of another, who, with the knowledge of the owner, puts the horse to board at a livery stable, it is a question for the jury whether the owner is estopped to assert his title as against third persons who dealt on the apparent own ership of the person in whose possession the owner had placed the horse. Brainard v. Knapp (City Ct. N. Y.), 29 N. Y. S. 678, 9 Misc. Rep. 206. The owner of the furniture in a barber shop does not, by merely allowing the same to stay there for use, hold it out as a basis for giving credit to the occupants of the shop, whether they be conducting business on their own ac count or for him. Giannone v. Fleetwood (Ga.), 21 S. E. Rep. 76, 93 Ga. 491. One taking, as security for a debt, a bill of sale of goods to arrive from a foreign port, without asking for the bill of lading thereof, held estopped, by presumed assent to the issue of the bill of lading, and by laches in applying for it, to claim the goods, as against one subsequently making advances, in good faith, to the same person, on the s signment and delivery by him of such bill of lading. Pollard v. Reardon, 65 Fed. Rep. 848, 13 C. C. A. 171. One who allows his daughter to conduct a business in her own name, and to be held out to commercial agencies and persons with whom dealings were had ake a as owner thereof, is estopped to assert title to the stock in trade as against one to whom she mortgaged it without notice of the father's interest. Rogers v. Robinson (Mich.), 62 N. W. Rep. 402. Where a son bought a horse, and mortgaged a horse owned by his father to secure the price, the fact that before the son made the purchase the father told the mortgagee that the son had a horse like the mortgagee's, wanted an other, and would give the mortgagee a good deal, is not sufficient to estop the father to set up title against one taking his horse under the mortgage. Barney v. Rutledge (Mich.), 62 N. W. Rep. 369. Where a wife purchases a retail drug store with her separate property, and permits her husband to carry on the business in his own name, she is not estopped, there being no allegation of her insolvency, as against a person selling goods to the husband on the faith of his ownership of the store, to deny the authority of the husband to subsequently mortgage the goods to secure the price, though, after the goods were bought, she may have stated to the sellers that they belonged to her husband. Kiefer v. Klinsick (Ind. Sup.), 42 N. E. Rep. 447. Where A, who furnished the money to buy a stock of goods, bought them in the name of B, and thereafter carried on the business in B's name as manager, ordering and paying for goods in his name, signing his name to checks, making credit statements in his name, having his name printed on the paper on which letters were written to merchants who sold goods to the business, and in every way created the false appearance that B was the owner of the stock and the business; and attaching creditors, who seized the property as B's property, had sold the goods for the unpaid portion of the purchase price of which they attached, relying upon the appearance of B's ownership of the stock and of the business so created by A, a portion of the goods being identical goods 80 sold by them to B, A was estopped, as against such creditors, from setting up ownership of the goods. Peabody v. Lloyds Bankers (N. D.), 68 N. W. Rep. 92. BOOK REVIEWS. BEACH ON RECEIVERS. The first edition of this well known treatise made its appearance some ten years ago and by reason of its merit and the dearth of text books on a subject which was largely of modern origin and growth, was received with favor by the profession. The necessity of a revision is clearly apparent from the remarkable development of the subject and the vast amount of litigation involving receiverships within the past decade. Mr. Alderson, of the St. Louis Bar, the author of a very good work on Judicial Writs and Process, was selected by the publishers to eliminate, increase and rewrite the original text, with reference to the later decisions. While the meritorious features of the original work of Mr. Beach have been preserved, many important changes have been made in the text and notes, and extensive new matter has been added to both. An estimate of the matter added to the original edition may be had by considering that pages of the present edition are larger and outnumber those of the first edition by one hundred and forty, while a vast number of additional cases are cited and considered. Many new and important sections have been added. The work may now be said to be an exhaustive and prac the tical presentation of the law of Receivers of Individuals, Partnerships and Corporations, with spe cial reference to Receivers of Railroads. The subjects of Appointment of Receivers, Pleadings, Suits by and against Receivers, have received particular attention. It is claimed by the publishers, and apparently with reason, that the present edition cites much more matter and cites many more cases than any other work on the subject of Receivers. The labors of Mr. Alderson seem to have been done with great care and thoughtful study. The expression of his own views upon questions as to which courts have disagreed and concerning propositions not yet adjudicated have greatly increased the character of the original work as a thorough text book. It is a volume of over nine hundred pages with a first class index and is handsomely printed and bound. Published by Baker Voorhis & Co., New York. BOOKS RECEIVED. A Treatise on the American Law of Guardianship of Minors and Persons of Unsound Mind. By J. G. Woerner, Author of "The American Law of Administration." Boston: Little, Brown & Company. 1897. The True Doctrine of Ultra Vires in the Law of Cor- General Value and Authority Subsequent to those Commentaries on the Laws of England. In Four Books. By Sir William Blackstone, Knight, one of the Justices of His Majesty's Court of Common Pleas. With Notes Selected from the Editions of Archbold, Christian, Coleridge, Chitty, Stewart, Kerr and Others; and in Addition, Notes and References to all Text Books and Decisions Wherein the Commentaries Have been Cited, and all Statutes Modifying the Text. By William Draper Lewis, Ph. D. Dean of the Department of Law of the University of Pennsylvania. Book 4. Philadelphia: Rees, Welsh & Company. 1897. HUMORS OF THE LAW. Texas Technicalites.-Bronco Pete-"Yep, dat new lawyer got Ike off pretty slick for manslaughter." Texas Tom-"How'd 'e do it?" Bronco Pete-"Wy, jes 'fore de case went to de jury, he discovered dat several pages of de county Bible was torn out. Uv course dat made de book inwalid; uv course dat made de swearing inwalid; en of course dat made de testimony uv seventy-eight witnesses inwalid; fer, uv course, de jury couldn't convict Ike on no sech song-en-dance testimony ez dat." 2. ACTION EX CONTRACTU Jurisdiction.-An action against an express company for the loss of a package, in which plaintiff alleges a verbal contract at the time of shipment, for a consideration then paid, and defendant specially pleads a written contract, is with. in Manst. Dig. Ark. § 4026, par. 1, giving justices of the peace concurrent jurisdiction with the circuit court "in matters of contract" within the jurisdictional amount.-AMERICAN EXP. Co. v. LANKFORD, I. T., 39 S. W. Rep. 817. 3. ADMINISTRATION-Distribution-Collateral Attack. -Code Civ. Proc. § 1666, declares that, on final distribution of an estate, the decree must name the persons and their shares, and shall be conclusive as to the rights of parties unless appealed from. Section 1678 provides that such distribution may be made though some of the heirs, etc., have conveyed their shares, and that such shares must be assigned to the person holding the same: Held, that a decree, after due notice, distributing to certain heirs a particular tract of the community estate, was, in the absence of an ap peal, conclusive on one to whom the widow had con veyed an undivided half of said tract pending distribu tion.-WILLIAM HILL CO. V. LAWLER, Cal., 48 Pac. Rep. 323. 4. ADVERSE POSSESSION- Possession of Guardian.One W left his wife and children in Germany, and came to Oregon, where he married another woman, and had other children. Upon his death, one S, who had acted as W's agent in the management of his real estate, caused himself to be appointed guardian of W's Oregon children, and, as such, held possession of the real estate, and applied the rents to the support of these children until their majority, when he turned the property over to them. In the meantime, the Ger man children, who had been informed of their father's remarriage, and one of whom had come to the United States, and lived there many years, made no attempt for over 20 years to assert any interest in their father's property: Held, that even if 8, at the time of W's death, knew of the existence of the German children, and if he could then have been charged with a trust in their behalf, his possession of the real estate as guardian of the Oregon children was adverse, and any rights of the German children were barred by their delay.WESTENFELDer v. GreeN, U. S. C. C. (Oreg.), 78 Fed. Rep. 892. 5. APPEAL-Reversal-Remand.-Where the controlling facts in a civil action are conceded by the parties in their pleadings or evidence, or both combined with out conflict as to any material fact, so that the error of the court lies in the application of the law to such facts, a higher court, after reversing the judgment for such error of law, may proceed and render such judg ment as the court below should have rendered upon such facts, or remand the cause to the court below for such judgment.-MINNEAR V. HALLOWAY, Ohio, 46 N. E. Rep. 636. 7. ASSAULT AND BATTERY Self-defense.-Every person has the right to resist an assault with such force as is necessary to protect himself, and, where the evidence showed that defendant struck plaintiff on the head with a stick, it was error to charge that, to justify the striking on the ground of self-defense, defendant must have bad reasonable ground to believe, and must have believed, that he was in danger of death or great bodily harm from the assault.-THORNTON V. TAYLOR, Ky., 39 S. W. Rep. 830. 8. ATTACHMENT Collusive Attachment.-Where a collusive attachment is levied on the property of a debtor for the purpose of delaying and defrauding other creditors, the claim of the attaching creditor will be postponed until the claims of other creditors who have intervened and attached the same goods are paid.-INTERSTATE NAT. BANK OF TEXARKANA V. STUART, Tex., 39 S. W. Rep. 963. 9. ATTACHMENT-Damages.-In an action for dam ages, actual and exemplary, for wrongfully and mali ciously attaching plaintiff's goods, defendants could plead, in mitigation of exemplary damages, that they had offered to redeliver the goods.-BILLINGSLEY V. HEWETT, Tex., 39 S. W. Rep. 958. 10. BENEFICIAL ASSOCIATIONS-Beneficiaries.-A sis ter, who does not live with her brother, and is not de pendent on him for support, is not a member of his family, within St. 1882, ch. 224, § 1, authorizing bene ficial association organized under such statute to pay benefits to members and their families."-SMITH V. BOSTON & MAINE RAILROAD RELIEF ASSN., Mass., 40 N. E. Rep. 626. |