Opinion
No. 3718.
Decided June 1, 1948.
A default and judgment entered against the defendant who was justified in assuming his employer would undertake his defense may be, stricken off in the discretion of the Trial Court. To invoke the doctrine of estoppel a party must have relied to his prejudice on a representation. A party is not bound by his own testimony concerning matters about which he could reasonably be found to be honestly mistaken, nor is he bound by extra judicial admissions made by him. Although the duty of going forward may shift, the burden of proof remains on the plaintiff.
BILL IN EQUITY in aid of an action at law, on a judgment recovered as the result of an automobile accident by the plaintiff against the defendant John T. Baroody in Rockingham County Superior Court. The plaintiff attached a bank account in Merchants National Bank of Manchester and other personal property as belonging to John, which property is now claimed by the defendant Adele Baroody. A trial by the Court (Wescott, J.) who has transferred this case, resulted in a decree dismissing the bill. The plaintiff duly excepted to the decree on the ground that it was contrary to the law and the evidence and the weight of the evidence. Subsequently a hearing was held in Rockingham County on the motion of the defendant John to set aside the judgment recovered against him in the action at law on the grounds of accident, mistake and misfortune under R. L., c. 398, s. 2. This motion was granted by Leahy, J. (by whom this case was transferred) subject to the plaintiff's exception. For convenience the issues raised in both cases have been consolidated under a single docket number.
It appears that after the defendant was sued in the action at law he turned the writ over to the company for which he worked, and on whose business he was at the time of the accident, at the request of the manager. As a result of this an insurance adjuster came to see the defendant, who he assumed would take care of the matter. Thereafter the defendant says he heard nothing until he received notice of a suit against him upon the judgment recovered in the accident case. There was no evidence to show that he actually had received any word concerning the case until he was sued upon the judgment. With reference to the question of the ownership of the property, it appears that Adele bought the business from the proceeds of the sale of another store owned by her and took a bill of sale in her name. She filed a certificate of trade name with the Secretary of State under R. L., c. 186, s. 1. She employed her brother John to run the store, paid him a salary and left the entire management of the business to him. There was no evidence that John at any time put any money into the concern or acquired any share of it. He kept the books, signed all returns and other papers relative to carrying on the store and in general conducted it, as he claims, under his sister's authority.
There is no evidence that the plaintiff or his intestate had any dealings with the defendants or their store or that they were known to each other before the matter here in issue arose. Further facts appear in the opinion.
Maurice A. Broderick (by brief and orally), for the plaintiff.
J. Morton Rosenblum (by brief and orally), for the defendants.
The plaintiff's exceptions are overruled. In regard to his first contention, that the Court erred in granting the defendant's motion to strike off the default and judgment, it is sufficient to say that the record warranted a finding that the defendant John was justified in assuming his employer would undertake his defense. The action of the Trial Justice being well within his discretion (see R. L., c. 398, s. 2; Superior Court Rule 8, 93 N.H. Appendix) presents no further question for us to consider. Lancaster National Bank v. Whitefield c. Trust Company, 92 N.H. 337. See also, Lewellyn v. Follansbee, 94 N.H. 111, 114, and authorities cited.
We turn now to the plaintiff's claim that the Court was bound as a matter of law to enter a decree in his favor, based on principles of estoppel and the rule in Harlow v. Leclair, 82 N.H. 506. In answer to these contentions it is enough to say that there is nothing in the conflicting evidence which the record discloses on the question of ownership of the property to compel a finding for the plaintiff. Neither estoppel nor Harlow v. Leclair, supra, apply here. There is no evidence that the plaintiff or his intestate ever relied to their prejudice on any representations of either of the defendants respecting ownership and therefore there is no estoppel. Bosen v. Larrabee, 91 N.H. 492; Hening's Digest, 571. The doctrine of the Harlow case does not apply to extra judicial admissions. Coughlin v. Company, 94 N.H. 57, and cases cited. Furthermore the record is barren of unequivocal statements of facts against interest regarding ownership, known to either of the defendants and concerning which they could not reasonably be mistaken. Cote v. Stafford, 94 N.H. 251.
The plaintiff also maintains that a presumption exists that John is the owner because he was clothed with the indicia of title. This argument loses sight of the fact, that so far as appears, no one relied on the situation to their detriment, and hence as previously pointed out there is no basis for an estoppel. Furthermore in this state a presumption is not evidence — its sole function is to take the place of evidence. When the latter appears, if only to the extent that an inference may be drawn from it, the presumption vanishes. Heffenger v. Heffenger, 89 N.H. 530, 532, and cases cited.
Lastly the plaintiff argues that the Court erred in placing the burden of proof upon him. He appears to rely here, partially at least, upon the principle of a presumption in his favor, of which we have already disposed, and also upon the alleged intent of the Legislature as shown by the provisions of R. L., c. 412, ss. 26, 27, 28, relative to trustee process. It is doubtful if the statute applies here since the plaintiff has not chosen to rely on it, but has brought an action in the nature of a creditor's bill to reach assets, claiming fraud by the defendants and an intent to hinder and delay the plaintiff in collecting his judgment. However we are unable to find any such intent in the wording of the statute. Section 28 refers to the third person, in this case Adele, as the "claimant" and the party making the attachment, here the administrator, as the "plaintiff." Nowhere does it indicate any shifting of the burden of proof. Nor do the cases cited by the plaintiff support his position. In Levy v. Woodcock, 63 N.H. 413, it was shown that the claimant had obtained the property by fraud, and in Davis v. Fogg, 58 N.H. 159, it appeared the claimant had no title. The remaining two cases do not fall under the statute, and merely state the familiar rule of equitable pleading that where the defendant makes affirmative allegations in objection to, or in avoidance of the plaintiff's demand he must produce some evidence to sustain his position. It is fundamental law in this state that though the duty of going forward may shift, the burden of proof remains on the plaintiff. Cohn v. Saidel, 71 N.H. 558, 570, and cases cited; Caswell v. Maplewood Garage, 84 N.H. 241, 255; Raymond v. Indemnity Company, 86 N.H. 93, 98, and cases cited. Here too, the plaintiff chose to open and close the case and we find no error in the Court's ruling that the burden was on him. See Hartford c. Company v. Lougee, 89 N.H. 222.
The plaintiff's argument that as the Court could not tell "where the truth lies" he must have found Adele was not the owner and John was, requires little consideration. Disbelief does not take the place of evidence. Brickell v. Company, 93 N.H. 140. Any other exceptions being neither briefed nor argued are deemed waived and the order is
Exceptions overruled.
All concurred.