majority">Kuhn, J.

(after stating the facts). It was the theory of the defendant, which finds support in the evidence, that when defendant bought the machine from Krieger he had no knowledge that plaintiff, or any other person, had any interest therein; that plaintiff within a few days saw the wheel in defendant’s possession, and said nothing to the defendant; that at the time the plaintiff drew the receipt and defendant paid the $35 still owed by him to Krieger the plaintiff said nothing about the contract, and led the defendant to believe that by making the payment he had acquired full and perfect title to the machine; that thereafter, when the plaintiff made out the application of registration for the machine, which was sent to the secretary of State and in which application the defendant was described as owner of the machine, nothing was said about the contract, or that the plaintiff claimed any right to the machine. It is the claim of the defendant that if the jury should find these facts to be true from the evidence, the plaintiff had by his conduct estopped himself from now asserting his title to the wheel, and various requests, incorporating this theory of the case, were submitted by defendant’s counsel to the court. Among others, was the following request to charge:

“One who, having contracted for the sale of personal property, stands by and permits his vendee to sell the same to an innocent purchaser is estopped to assert, as against the latter, that title had not passed under the contract, or that he is entitled to a lien for the purchase price.”

We are of the opinion that this request, or its equiva*443lent, should have been given. The trial judge in his charge said the following with reference to this claim:

“Now, the plaintiff, under these circumstances, would be entitled to recover in this action in any event unless he has waived his rights; unless he has knowingly and intentionally done such acts as waive his rights under this contract, released his title to Meatz, and released all claims against the machine, he would be entitled to recover. And in such case your verdict would be for the plaintiff, with nominal damages. On the other hand, if the jury should find that he has knowingly and intentionally waived his rights, then your verdict must be for the defendant, and in that case your verdict would be that the plaintiff return the property and pay to the defendant such damages as he may have sustained.”

And thereupon the following occurred:

“The Court: Swear an officer.

“Mr. O’Hara: Oh, just a moment! Your honor has not covered our theory of the case at all. Those requests there.

“The Court: Very well. Those requests will be refused, and note an exception.

“Mr. O’Hara: Your honor has used the word ‘Intentionally.’

“The Court: I did.

“Mr. O’Hara: I take an exception.

“The Court: Certainly, certainly. Let an officer be sworn.”

We do not think that this is a correct exposition of the law with respect to the defendant’s theory of the case. While it is true that the claims of the defendant were strenuously denied by the plaintiff, nevertheless the defendant clearly had a right to have his theory submitted to the jury with proper instructions of the law applicable thereto. We do not think that it was necessary, as a matter of law, for the jury to find that the plaintiff had “knowingly and intentionally” parted with his title. The question rather is, Was the *444conduct of the plaintiff such, in relation to this transaction, as to lead a reasonably prudent man to believe that he had no claim or interest in the machine in question? In discussing the question of estoppel in a case of this kind this court said, in Vanneter v. Crossman, 42 Mich. 465 (4 N. W. 216):

“It is the act and not the intention that governs. The owner of property may silently stand by and see it sold as the property of another, and this without any intention on his part.of misleading or injuring any one, and yet the result would be the same.”

See, also, Miller v. Ross, Bradley & Co., 107 Mich. 538 (65 N. W. 562); 16 Cyc. p. 722.

For the-error thus pointed out, the judgment must be reversed, and a new trial granted, with costs to the appellant.

Stone, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Person, JJ., concurred.

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