On September 3, 1937, the District Court of the Eleventh Judicial District, in an action between Henry J. Radermacher, plaintiff, and Freda M. Radermacher, defendant, husband and wife, entered its decree awarding to Freda M. Radermacher the personal property herein involved, together with other property, both real and personal. On September 15, October 6, and October 26, 1937, Freda M. Radermacher delivered to appellants to be sold the following described personal property, to-wit: one cow, one red heifer, and one roan heifer. Appellants sold said property at the request of Freda M. Radermacher, paying to her the amounts received therefor, totalling $148.00, less commission.
At the time of delivery and sale of the above-mentioned livestock, no notice or undertaking on appeal had been filed from the above-mentioned decree, and were not filed or served until November 12, 1937, subsequent to the sales. The question arises whether or not recovery can be had against appellants for said amount. The jury found, in response to Special Interrogatory No. 3:
"Q. Did plaintiff, before the sales alleged, notify said defendants that all cattle bearing a certain described brand were his property and forbid them to sell any of the same?
"A. No."
The record discloses Henry J. Radermacher was present at the sale when some of the personal property was sold. When sale of the above property was made by appellants under the law, irrespective of the decree awarding said property to Freda M. Radermacher as her sole and separate property, she was the owner of an undivided one-half interest therein, and living separate and apart from her husband. (Kohny v. Dunbar, 21 Idaho 258,121 P. 544.) Furthermore, respondent made no protest against the sale, and, as heretofore stated, had perfected no appeal. Judgment of the trial court above referred to was in full force and effect at the time of sale. In such circumstances, no recovery for the value of the personal property heretofore referred to could be had as against appellants for two reasons:
First, Henry J. Radermacher, by his acts and conduct, is estopped from recovering the value of the above-mentioned property. He had ample opportunity to protest and *Page 384 object to the sale which he failed to do. The fact respondent had previously been cited for contempt for failure to make maintenance and suit money payments, as ordered by the court in the divorce action, would not afford a cogent excuse for his failure to notify appellants that the above personal property was his, and not the property of Freda M. Radermacher, and forbid appellants to make said sale.
In Exchange State Bank v. Taber, 26 Idaho 723-737, 145 P. 1090, quoting substantially from Divide Canal and Reservoir Co.v. Tenney, (Colo.) 139 P. 1110, and Truesdail v. Ward, 24 Mich. 117, the following language is used:
"Where a party by conduct has intimated that he consents to an act which has been done or will offer no opposition thereto, though it could not have been lawfully done without his consent, and he thereby induces others to do that from which they might have otherwise abstained, he cannot question the legality of action to the prejudice of those who have acted on the false inference to be drawn from his conduct."
Second, the sale of said property was consumated and money paid to Freda M. Radermacher prior to the service of notice of appeal and filing of undertaking on appeal. Payment of money by appellants to Freda M. Radermacher was for the benefit and enrichment of the community estate. Recovery by Henry J. Radermacher in this action also enriches the community estate.
I am unable to concur in the majority opinion affirming judgment of the trial court in favor of respondent for the value of personal property heretofore referred to prior to perfection of appeal to this court, amounting to $148.00, and judgment should be reduced in said amount.
As was said in Radermacher v. Sutphen, 60 Idaho 529,92 P.2d 1070:
"In view of the fact that the original decree of the trial court awarded the property to the wife, which decree was in force for a time."
the decree of the District court was in force until the perfection of appeal from said decree of this court. Freda M. Radermacher, under the trial court's decree awarding to her the above personal property for maintenance of herself and four minor children, had the legal right to sell same personally, or through her agents, until an appeal *Page 385 was perfected. No order by the judge of said court enjoining or restraining her from so doing was made.
I concur in the conclusion reached in the majority opinion except that portion awarding to respondents value of personal property sold prior to perfection of appeal, and as to that part, I dissent.