Burritt v. Dickson

Burnett, J., after stating the facts, delivered the opinion of the Court—Terry, J., concurring. The only matter of contest in this Court regards the item for professional services in the case of Dickson, De Wolf & Co. against Chauviteau. And the only ground upon which the liability of the firm, for this item, is contested, is that the charge is the individual debt of Dickson, incurred before the formation of the partnership. The fact is certain that the plaintiff, at the time this suit was brought, knew that Dickson was the sole member of the house of Dickson, De Wolf & Co. But it is not shown that the plaintiff knew anything of the terms upon which the new firm was formed. The fact that defendant, Campbell, had dismissed the suit in writing, signed in the name of the firm, without any addition to the signature showing that it was done by an agent of Dickson, was a circumstance that went to show that the new firm had assumed the liabilities of Dickson. It was not the fact, that the name of Dickson, De Wolf & Co., was signed to the written direction, for this was proper, as that was the style of the suit; but it was the fact that the style of the new firm was used by one of that firm, without stating that he acted as the agent of Dickson. This circumstance afforded the plaintiff a reasonable ground for supposing that the new firm took upon itself the liabilities of Dickson. He therefore stated to defendants, distinctly, that certain items he considered chargeable to Dickson, and would look to him for them, and that the other items he supposed chargeable to the firm. He demanded payment, and distinctly informed the defendants that if payment was not made, he would bring suit. It will be seen from their answer that they did not contest the correctness of the apportionment of the items made by plaintiff between Dickson and the firm, but contested only the justice of the claims. The plaintiff, by this course, was induced to bring his suit against the firm. If they had intended to deny the liability of the firm, they were bound to apprise the plaintiff of their intention. As they knew he was about to bring suit, and was in doubt as to what party to sue, they were bound, in answer to his note, to state candidly who was liable for this item, if not already paid. The services had been rendered, and some party was certainly liable for whatever sum was still justly due. When a party pursues a certain line of conduct, by which he has induced others to act, he is estopped from afterwards avoiding the consequences of his conduct. Greenl. on Ev., 195 § 27. The defendants, knowing that plaintiff was laboring under a mistake as to the proper party to sue for this .item, were bound, in justice and fair-dealing, to put him in possession of correct information. His statement to them was clear and explicit, and they made no objection to the conclusion he had drawn that the firm [116] was accountable for this item. It would seem, therefore, that they had estopped themselves from contesting it upon that ground. Having expressly based their resistance to the claim upon other grounds, and having omitted this, to which their attention was explicitly called, it is too late, after suit brought, to set up such a defence. It has been waived, and could not be afterwards asserted. For these reasons, it would seem that the judgment of the Court below is correct, and should be affirmed.