The verdict in this case is manifestly wrong. It was an action of trover for the conversion of a horse. The verdict was for the plaintiff, and the case comes to this court on a motion to set it aside as against the evidence, accompanied by a second motion for the same purpose based on newly-discovered evidence.
The defendant purchased the horse in good faith of Corydon A. Sawyer, of Vienna, the husband of the plaintiff’s niece. The plaintiff resided in Guilford, and in August, 1894, owned the mare in question, but allowed Sawyer to take her to Vienna, as he says, to keep until the following May, to be returned “ all sound and smooth as she was then . . or money to make her so.”
On the. twelfth day of November following, Sawyer being still rightfully in possession of the mare, and claiming to own her, sold and delivered her to the defendant, who had no knowledge of the plaintiff’s title, and no reason to suspect it. The plaintiff learned of the sale in January following, but gave the defendant no notice of his title until June 20, 1896, nearly seventeen months after-wards. In the meantime instead of making a demand upon the *524defendant for his horse or the value of her, the plaintiff wrote several letters to Sawyer in regard to an adjustment of the matter, and received from him four payments amounting in the aggregate, according to the plaintiff’s own admission, to at least $45, on account of the horse.
From this evidence of the plaintiff’s conduct, considered in the light of the relationship and friendly feelings between Sawyer and himself, the inference is irresistible that he waived all objection to the act of Sawyer in thus disposing of the horse and intended to ratify and affirm the transactions and rely upon Sawyer for payment. Furthermore, by reason of the plaintiff’s long silence when he should have spoken, if he intended to assert his claim against the defendant, the latter was deprived of the opportunity to take prompt measures to protect himself against loss, and the doctrine of estoppel can now equitably be invoked for the defendant’s protection.
But the newly-discovered evidence strikingly illustrates the strength of the presumptive evidence above relied upon, and the wisdom of the doctrine of' equitable estoppel. The defendant finally succeeded in obtaining the testimony of Sawyer, who was out of the state at the time of the trial, together with the plaintiff’s letter to Sawyer in relation to the mare: — and for failure to obtain this evidence at the trial neither the defendant nor his attorneys appear to be chargeable with a want of reasonable diligence.
According to Sawyer’s testimony it was distinctly understood between the plaintiff and himself when he took the mare to Vienna, that he should sell her for the plaintiff if he had a chance; and this testimony is confirmed by the plaintiff’s own letter to Sawyer of October 7, 1894, in which he expressly authorized Sawyer to “ trade the mare into a larger pair,” and pay the plaintiff what would be satisfactory to Sawyer. It also appears from the plaintiff’s lettei’s to Sawyer on December 8, 1894, and April 28, 1895, that he fully and effectually ratified the sale of the mare to the defendant Fairbanks and accepted Sawyer as paymaster, after he had received definite knowledge of the terms of that sale.
*525Upon this evidence it is clear that the plaintiff’s action against Fairbanks for the conversion of the horse is not maintainable, and-it would be gross injustice to allow this verdict against him to stand.
The entry must therefore be,
Motion sustained.