Perry Bros. v. Farrimond

Townsend, J. Appellants make assignment of errors as follows: “First. That the defendants herein are estopped from claiming the value of the improvements conveyed by co-tract dated March 4, 1899, to be less than the amount stated in said contract. Second. That the defendants are estopped from attempting to show at this time that plaintiff had not properly worked said mine, and had not worked it in a first-class shape, under his lease contracts of June 25, 1897, and June 22, 1898, and from claiming damages against plaintiff for his failure to work said mine in first-class shape under his contracts of June 25, 1897, and June 22, 1898. Third. The court finds that the plaintiff is entitled to recover of and from the defendants the sum of four hundred fifty-two dollars and fifty cents (452.50).” Appellants, in support of their contention, cite Pomeroy on Equitable Estoppel, as follows: “Equitable estoppel is the effect of the voluntary conduct of a party, -vyhereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, [64] of contract, or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who, on his part, acquires some corresponding right, either of property, of contract, or of remedy. * * * One caution, however, is necessary, and very important. It would be unsafe and misleading to rely on those general requisites as applicable to every case, without examing the instances in which they have been modified or limited. (1) There must be conduct — acts, language, or silence —amounting to a representation or a concealment of material facts. (2) These facts must be known to the party estopped at .the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. (3) The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel at the time when such conduct was done, and at the time when it was acted upon by him. (4) The conduct must be done with the intention, or at least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and ¡arobable that it will be so acted upon. There are several familiar species in which it is simply impossible to ascribe any intention or even expectation to the party estopped, thathis conduct will be acted upon by the one who afterwards claims the benefit of the estoppel. (5) The conduct must be relied upon by the other party, and, thus retying, he must be led to act upon it. (6) He must in fact act upon it in such a manner as to change !his position for the worse. In other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct, and to assert rights inconsistent with it.” \ The proof shows that appellants took possession of the mine 'under the contract of sale on March 4, 1899, and that on [65] March 8, 1899, appellee, in company with Frank Jewett, appellants' pit boss, made certain measurements, etc., and two days later “turned in a true copy of said appraisement and'list of improvements and materials, with their respective values,” to the appellants; and, notwithstanding appellee called at appellants, office twice each month for seven months for the purpose of receiving part payments on the balance due him, nothing was said to him by appellants indicating that his appraisement was not satisfactory, except as to the pond, objection to which was not made until “July or August.” It was clearly the duty of appellants to make their objections, if any, to appellee's appraisement, known to him within a reasonable time; and, in default thereof, appellee had a right to assume that his appraisement was accepted as correct, and to rely thereon. This is true, also, as to the manner in which the mine had been worked by appellee. Appellants would not be permitted to take the goods of appellee, and the benefit of the work'done by him, and, by his neglect to perform his dut3r, lead appellee to believe that his appraisement had been accepted as correct, and thereafter repudiate appellee’s claim for the price of the goods and the value of the work done. Herman on Estoppel & Res Judicata, § 1063, says: “When a man with full knowledge, or at least with sufficient notice or means of knowledge of his rights, and of all the material circumstances of the case, freely and advisedly does anything which amounts to the recognition of a transaction, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time and knowingly and deliberately permits another to deal with property or incur expense under the belief that the transaction has.been recognized, or freely and advisedly abstains for a considerable lapse of time from impeaching it, there is acquiescence, and the transaction, although originally impeachable, becomes unimpeachable in equity. Amer. & Eng. Enc. of Law (2d Ed.) vol. 11, p. 421, says: “Misrepresentation or Concealment of Facts — in General. The most usual application of the doctrine [66] of estoppel in pais arises from the misrepresentation or concealment of material facts on the part of the person to be estopped. Thus it is a well-settled rule of equity, which has been adopted by the courts of law, that where A. has, by his-acts or representations, or by his silence when he ought to speak out, intentionally or through culpable negligence induced B. to believe certain facts to exist, and B. has.rightfully acted on this belief, so that he will be prejudiced if A. is permitted to deny the existence of such facts, A. is conclusively estopped to interpose a denial thereof.” In Jowers vs Phelps, 33 Ark. 465, the court said; “Estoppels in pais depend upon facts which are rarely in any two cases precisely the same. The principle upon which they are applied is clear and well defined. A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with % willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, will not be allowed after-wards to come in and assert his right, to the detriment of the person so misled.” Pomeroy's Equity Jurisprudence, § 818: “Acquiescence consisting of mere silence may also operate as a true estoppel in equity to preclude a party from asserting legal title and rights of property, real or personal, or rights of contract.” Counsel for appellants contend, also, that the law of estoppel, in order to be successfully invoked, must be pleaded. Herman, in his work on Estoppel & Res Judicata, §§ 1296, 1303, 1305, says: ' ' 1 “Sec. 1296.t In regard to estoppels in pais or equitable estoppels, there is a remarkable difference between this and other lands of estoppels; that is, that estoppels in pais may be relied on in evidence as conclusive, without being specially pleaded. * * * [67] “Sec. 1303. * * * For estoppels in pais are not pleaded, but are, in general, given in evidence, and will prima facie operate as effectually to estop the party under the direction of the court. “See. 1305. Equitable estoppels growing out of'acts in pais constitute an exception to the general rule, and are equally conclusive, whether pleaded or given in evidence. This is peculiarly true of estoppels in pais, which generally arise out of a great variety of circumstances, that cannot well be set forth with the precision and brevity required for good pleading, except where otherwise provided for by statute.” Counsel for appellants has not urged upon the court any further argument in support of his third assignment of error. There being no error in the record, we are of the opinion that the judgment of the court below should be, and it is, affirmed. Raymond, C. J., and Gill, J., concur.