PAINE, J.
Assuming that an amendment of tbe answer was necessary, in order to let in tbe proof of tbe defendant’s counterclaim, it was not an abuse of discretion for tbe court to allow it. . Where tbe amendment is one merely necessary to perfect a cause of action or defense defectively stated, it has been too often held proper to allow it upon tbe trial, upon just terms, to be longer an open question.' This would not be contro[319]*319verted; but the appellant’s counsel contends that the amendment here allowed introduced an entirely new and different counterclaim from that originally set up. An examination fails to sustain this view. The original counterclaim. was, in substance, for the conversion of certain articles of property which the defendant claimed to own, and which, he alleged, the plaintiff had refused to allow him to remove when he surrendered possession of the hotel. The counterclaim of which proof was finally admitted, under the amendment, was of precisely the same conversion of the same articles. So it is impossible to say it was a new and different defense or counterclaim.
The ground upon which this was assumed was, that in the original answer the defendant had set up that he acquired title to these articles by purchase from some of the former lessees of the hotel, to whom they belonged. And as the amendment allowed set forth facts showing an estoppel as against the plaintiff, preventing him from questioning the defendant’s title under such alleged purchase, by reason of his having stood by at the time and seen the sale, without making any objection or claim of title in himself, it is insisted that this makes the counterclaim a new and different one. The utmost that could be said of it would be, that; it was alleging a different source of title in the defendant. Even if it were clearly so, that would not change the counterclaim. The essential fact was, that he had title; not whether he acquired it from one person or another. It was not necessary for him to set forth the origin of his title. It is not usual to do so, either in actions relating to real or those relating to personal property. Sometimes, where the controversy may be narrowed by more specific pleading, the source of title is disclosed. But usually there is a mere general allegation of ownership; and in this case it would have been sufficient, if the defendant had alleged, generally, that he owned the articles in [320]*320question, and then set forth facts showing a conversion by the plaintiff. If, then, on the trial, he had proved a purchase from the former lessee, and the delivery of possession under it, and the plaintiff, to defeat ,the title thus derived, had offered proof of a paramount title in himself, the defendant might have rebutted such proof by showing that the plaintiff was estopped from asserting such paramount title, by reason of having stood by without asserting it at the time of the defendant’s purchase.
As it was, therefore, unnecessary to. set forth the source of the defendant’s title, if the pleader did set it forth incorrectly it was entirely proper, if necessary, to allow the essential allegation of title to be perfected by amendment according to the fact. It was no more a change of the counterclaim, than.it would be a change of the cause of action, if a plaintiff should sue for an injury to real estate, and unnecessarily allege that he purchased it from A., to allow him to amend and show, in fact, that it was purchased from B.
But even assuming that, where the source of title is unnecessarily alleged, it must be proved as laid, unless changed by amendment, I do not think any amendment was necessary here. I do not think there was any change here, even as to the alleged source of the defendant’s title. He originally alleged title through a purchase from the former lessee; it was only that title which he was, through the amendment, finally permitted to substantiate. It is true, that, to make it good, he was permitted to estop the plaintiff from asserting a paramount title; but that fact does not prevent it from still being true, that the title of the defendant was derived solely from his purchase from the former lessee. The estoppel arose out of, and takes effect through, that purchase. The real owner, standing by and seeing that purchase without asserting his own right, is estopped to deny that the sale conveyed a good title to the purchaser. It [321]*321seems to me, therefore, that the proof of the facts constituting, the estoppel went merely in'support of the original allegation 'that the -defendant acquired title through a purchase from the former lessee. For, although the plaintiff may have been the real owner, and although the legal effect of the estoppel is to work a transfer of his title to the defendant, yet it does so only by giving full effect to the purchase from the former lessee, and preventing the plaintiff from questioning its validity. I think, therefore, that the facts showing the estoppel went merely to support the original allegation as to the source of title, and that the proof was admissible without any amendment. Upon this point I have given only my own views, the decision of the court being, that, assuming the necessity of an amendment, it was, for the reasons previously given, properly allowed.
The question then arises, whether the facts set forth as a counterclaim constitute any proper counterclaim in this action. The action is upon a contract for the breach of covenants in a lease. There were allegations and proof that the plaintiff told the defendant, that if the articles in controversy in the counterclaim were left in the hotel, he would pay for them whenever they “ should he adjudged, by suit or otherwise,” to belong to defendant. The question has occurred, whether, upon this agreement, the counterclaim could be sustained as one arising upon contract, and enforced in this action. Could the adjudication of title, which was made the condition of the promise, be procured for the first time in the very action on the promise itself? This question we have not found it necessary to determine, as we have come to the conclusion that the counterclaim may be sustained upon another ground.
The action was for a breach of the covenants in the lease of a hotel, t One of the alleged breaches was, that, instead of surrendering possession, the defendant had carried off sundry articles that belonged to, and were a [322]*322part of, the hotel. It appeared that there was a dispute between the parties, at the time of the surrender, as to what the lessee was entitled to remove; or, in other words, as to what the covenant to surrender possession included. The plaintiff claimed that the defendant had carried off things which he ought to have surrendered. The defendant claimed that the plaintiff retained and refused to permit him to remove things to which he was entitled. This, we think, may fairly be said to be a cause of action which, according to the somewhat indefinite language of the statute, “arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim.” It grew directly out of a misunderstanding between the parties as to their respective rights under that contract. See Ainsworth v. Bowen, 9 Wis. 348.
It remains, then, to determine whether there was any error in the rulings. The appellant insists that the seventh and tenth instructions given by the court were erroneous. They were as follows : “Seventh.
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PAINE, J.
Assuming that an amendment of tbe answer was necessary, in order to let in tbe proof of tbe defendant’s counterclaim, it was not an abuse of discretion for tbe court to allow it. . Where tbe amendment is one merely necessary to perfect a cause of action or defense defectively stated, it has been too often held proper to allow it upon tbe trial, upon just terms, to be longer an open question.' This would not be contro[319]*319verted; but the appellant’s counsel contends that the amendment here allowed introduced an entirely new and different counterclaim from that originally set up. An examination fails to sustain this view. The original counterclaim. was, in substance, for the conversion of certain articles of property which the defendant claimed to own, and which, he alleged, the plaintiff had refused to allow him to remove when he surrendered possession of the hotel. The counterclaim of which proof was finally admitted, under the amendment, was of precisely the same conversion of the same articles. So it is impossible to say it was a new and different defense or counterclaim.
The ground upon which this was assumed was, that in the original answer the defendant had set up that he acquired title to these articles by purchase from some of the former lessees of the hotel, to whom they belonged. And as the amendment allowed set forth facts showing an estoppel as against the plaintiff, preventing him from questioning the defendant’s title under such alleged purchase, by reason of his having stood by at the time and seen the sale, without making any objection or claim of title in himself, it is insisted that this makes the counterclaim a new and different one. The utmost that could be said of it would be, that; it was alleging a different source of title in the defendant. Even if it were clearly so, that would not change the counterclaim. The essential fact was, that he had title; not whether he acquired it from one person or another. It was not necessary for him to set forth the origin of his title. It is not usual to do so, either in actions relating to real or those relating to personal property. Sometimes, where the controversy may be narrowed by more specific pleading, the source of title is disclosed. But usually there is a mere general allegation of ownership; and in this case it would have been sufficient, if the defendant had alleged, generally, that he owned the articles in [320]*320question, and then set forth facts showing a conversion by the plaintiff. If, then, on the trial, he had proved a purchase from the former lessee, and the delivery of possession under it, and the plaintiff, to defeat ,the title thus derived, had offered proof of a paramount title in himself, the defendant might have rebutted such proof by showing that the plaintiff was estopped from asserting such paramount title, by reason of having stood by without asserting it at the time of the defendant’s purchase.
As it was, therefore, unnecessary to. set forth the source of the defendant’s title, if the pleader did set it forth incorrectly it was entirely proper, if necessary, to allow the essential allegation of title to be perfected by amendment according to the fact. It was no more a change of the counterclaim, than.it would be a change of the cause of action, if a plaintiff should sue for an injury to real estate, and unnecessarily allege that he purchased it from A., to allow him to amend and show, in fact, that it was purchased from B.
But even assuming that, where the source of title is unnecessarily alleged, it must be proved as laid, unless changed by amendment, I do not think any amendment was necessary here. I do not think there was any change here, even as to the alleged source of the defendant’s title. He originally alleged title through a purchase from the former lessee; it was only that title which he was, through the amendment, finally permitted to substantiate. It is true, that, to make it good, he was permitted to estop the plaintiff from asserting a paramount title; but that fact does not prevent it from still being true, that the title of the defendant was derived solely from his purchase from the former lessee. The estoppel arose out of, and takes effect through, that purchase. The real owner, standing by and seeing that purchase without asserting his own right, is estopped to deny that the sale conveyed a good title to the purchaser. It [321]*321seems to me, therefore, that the proof of the facts constituting, the estoppel went merely in'support of the original allegation 'that the -defendant acquired title through a purchase from the former lessee. For, although the plaintiff may have been the real owner, and although the legal effect of the estoppel is to work a transfer of his title to the defendant, yet it does so only by giving full effect to the purchase from the former lessee, and preventing the plaintiff from questioning its validity. I think, therefore, that the facts showing the estoppel went merely to support the original allegation as to the source of title, and that the proof was admissible without any amendment. Upon this point I have given only my own views, the decision of the court being, that, assuming the necessity of an amendment, it was, for the reasons previously given, properly allowed.
The question then arises, whether the facts set forth as a counterclaim constitute any proper counterclaim in this action. The action is upon a contract for the breach of covenants in a lease. There were allegations and proof that the plaintiff told the defendant, that if the articles in controversy in the counterclaim were left in the hotel, he would pay for them whenever they “ should he adjudged, by suit or otherwise,” to belong to defendant. The question has occurred, whether, upon this agreement, the counterclaim could be sustained as one arising upon contract, and enforced in this action. Could the adjudication of title, which was made the condition of the promise, be procured for the first time in the very action on the promise itself? This question we have not found it necessary to determine, as we have come to the conclusion that the counterclaim may be sustained upon another ground.
The action was for a breach of the covenants in the lease of a hotel, t One of the alleged breaches was, that, instead of surrendering possession, the defendant had carried off sundry articles that belonged to, and were a [322]*322part of, the hotel. It appeared that there was a dispute between the parties, at the time of the surrender, as to what the lessee was entitled to remove; or, in other words, as to what the covenant to surrender possession included. The plaintiff claimed that the defendant had carried off things which he ought to have surrendered. The defendant claimed that the plaintiff retained and refused to permit him to remove things to which he was entitled. This, we think, may fairly be said to be a cause of action which, according to the somewhat indefinite language of the statute, “arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim.” It grew directly out of a misunderstanding between the parties as to their respective rights under that contract. See Ainsworth v. Bowen, 9 Wis. 348.
It remains, then, to determine whether there was any error in the rulings. The appellant insists that the seventh and tenth instructions given by the court were erroneous. They were as follows : “Seventh. In relation to the property claimed in the counterclaim, I think, if you should find from the testimony that Butcher claimed that the articles, or any of them, belonged to him at the time of sale, and that the plaintiff assented to it, and that he sold them to defendant, or any of them, with the plaintiff’s knowledge and assent, the plaintiff cannot now claim such articles even as fixtures.” ' “ Tenth. If the jury believe, from the evidence, that, at the time of the purchase, and before it was completed, the plaintiff and defendant, together with Mr. Dutcher, went over the house, and the articles of property which Mr. Butcher claimed the right to sell to the defendant, and not to belong to the house, were pointed out, and the plaintiff made no claim to the same, and stood by and saw the defendant purchase them, the plaintiff is now estopped from setting up any claim to any of the property so pointed out.”
[323]*323This seems to us a very clear and full statement of the facts sufficient to constitute an estoppel, and to he entirely applicable to the evidence in the case. The law-embodied in these instructions is nothing more or less than the general familiar proposition, that, where an owner of property stands by and sees a third party sell it as his own, without asserting his own title or giving the purchaser any notice' of it, he is estopped as against such purchaser from asserting it afterward. But the appellant’s counsel refers to the remark of the chief justice in Norton v. Kearny, 10 Wis. 453, to the effect, that an estoppel in pais happens where a party makes a statement or admission, either expressly or by implication, with the intention of influencing the conduct of another, and that other acts upon the confidence of such statement or admission, and will suffer injury if the party is permitted to deny it.” And he then claims that the instructions under consideration were erroneous in omitting to include this element of intention on the part of the plaintiff as one of the essential elements of an estoppel.
The language of the chief justice was natural enough, as applicable to the facts in that case, where the plaintiff sought to base an estoppel on an appraisal by one of the defendants, to which he was an entire stranger, and by which he was never influenced'. But it was never designed to supersede the old rule, that every man is presumed to intend the natural consequences of his own actions. And this rule would be superseded, if, in addition to the facts required by these instructions, it were held necessary to give any further proof of the party’s intention, to constitute an estoppel. Upon those facts, the law, acting upon the presumption that his intention is in accordance with his acts, creates the estoppel. And he could not be permitted to avoid it by raising any question as to what were his secret intentions.
[324]*324,It may have been that the real truth was, that the plaintiff never clearly understood that Dutcher was assuming to sell these articles to the defendant. But the testimony of Butcher and the defendant would warrant the jury in finding that he did fully understand it. The instructions of the court clearly import that they must so find. And if that was true, — if he did go "over the house with Butcher and the defendant for the very purpose of settling beyond dispute what things Butcher had a right to sell, and these articles were pointed out as Butcher’s, and he sold them to the defendant, without objection from the plaintiff,— a plainer case of estoppel could not well be imagined. And it would be extraordinary indeed, if, upon such facts, it were necessary to present to the jury any distinct, separate question as to the plaintiff’s intention.
So, also, it was not necessary for these instructions to say expressly to the jury that they should find that the defendant was influenced by the silence and assent of the plaintiff, and" acted on the faith of it. The facts required to be found necessarily import that.
Nor can it be said that the sale had been consummated before this, and therefore there was no estoppel. It is true that Butcher and the defendant had fully agreed upon the terms, but no papers had been executed or delivered, and the whole thing was subject to the consent of the plaintiff, and before the final consummation of the bargain these interviews took place. And the instructions expressly require the jury to find that they occurred before the sale was completed.
The defendant’s statement, that the plaintiff never in his presence abandoned his claim to the annunciator, evidently means, only, that he never used any express words to that effect. It is clear that he did not intend by this statement, called out on cross-examination, to recall any portion of his former testimony in regard to the circumstances attending the sale. And if that was [325]*325true, there was no need of any express abandonment of the plaintiff’s claim.
The only other question is, whether there was error in denying the motion for a new trial, on the ground that the verdict was against evidence. Upon this point I can readily say, that I could not have found the verdict which the jury did. They apparently allowed the plaintiff nothing, although it seems clear from the evidence that some things were taken away by the defendant which he had no right to take, and that there were some breaches of the covenants, for which damages to some extent ought to have been allowed. But, although it is probable that the jury allowed nothing for these things, we cannot say certainly that such was the case. There was a wide difference in the testimony as to the value of the annun-ciator claimed by the defendant. He himself swore - that it was worth four hundred dollars. The weight of testimony seems decidedly against any such conclusion; but as it, was a question of credibility as between the witnesses, we cannot say that it was not within the province of the jury to adopt his statement as a true one, if they believed it. If they did so, they may still have allowed the plaintiff considerable damages, which were deducted from the counterclaim, before the balance of the latter was fixed. The rule upon which this court acts upon this question is, that, where there is any construction of the testimony which the jury were at liberty to give, that sustained the verdict, and the court below has refused a new trial, this court will not interfere' upon the mere ground that the verdict is against evidence. That seems to be the case here. Though the verdict appears to be against the weight of evidence, yet there was evidence which the jury were at liberty to believe, and which, if they believed it, would sustain the finding. The judgment must be affirmed.
By the Court.• — Judgment affirmed.
A motion for a rehearing was disposed of at the January term, 1870, as follows: