Cuthbert Ice Co. v. York Manufacturing Co.

Broyles, P. J. The third headnote (subdivision a) alone requires elaboration. This was a suit on two promissory notes, for principal, interest, and attorney’s fees. The petition alleged that the statutory notice as to the claim for attorney’s fees had been given. This allegation was denied by the defendant in its answer. As shown by the bill of exceptions, after the plaintiff closed its evidence (and no evidence showing the giving of such notice had been introduced), “the court inquired of plaintiff’s counsel if there was any claim to attorney’s fees in the suit, whereupon, [699] plaintiffs counsel announced in his place that there was and that he had served defendants with written notice of suit for the purpose of binding defendants in the payment of attorney’s fees, such statement not being made under oath by plaintiffs counsel as a witness in said case.” Upon this point is the following note of the trial judge, embodied in and made a part of the bill of exceptions: “The court also asked plaintiffs counsel if the petition alleged that notice of the claim of attorney’s fees had been given defendant before suit as required by the statute. Counsel for plaintiff answered that it had. The court then asked if defendant had denied such allegation in its answer, to whifch plaintiffs counsel answered that it had not. All this occurred in the presence and hearing of defendant’s counsel, who knew the court was under the impression that there existed no issue about attorney’s fees and who said nothing to the contrary, when the court stated that inasmuch as no contested issue was left, a verdict would be directed, and the court did then direct a verdict for plaintiff. If counsel for defendant had notified the court that such issue was contested and that he desired to be heard on it, the court would have allowed it. The court thought defendant’s counsel assented to the correctness of the statement of counsel for plaintiff.” In the light of this note of the trial judge we think it was clearly the duty of counsel for the - defendant, under the circumtsances narrated, to speak up and notify the court that the defendant had in its answer denied receiving the notice as to attorney’s fees. An attorney in a case is not only the champion of his client, but is also an officer of the court, and the obligation rests upon him during the trial of the case to assist the court, and to furnish to it all the' light possible. His duty is not only not actively to deceive the court as to any fact of the case, but, if possible, not to permit opposing counsel to do so. It appears in this case that the court, in seeking information as to an important fact, called upon counsel for the plaintiff for enlightenment, and that such counsel inadvertently misled the court by giving erroneous information, and that counsel for the defendant, knowing this and himself having the correct information, instead of giving it to the court, remained silent and allowed the court to be deceived. We think such conduct of counsel estopped him, in good conscience and equity, from taking advantage of such an error. Fraud amounting to an es [700] toppel may be committed by silence. Civil Code (1910), § 4419. As was said by this court in National Duck Mills v. Catlin, 10 Ga. App. 246 (73 S. E. 421) : “The general rule of estoppel by silent acquiescence . . has been of long standing, and has received repeated recognition from the highest courts of this State.” Acquiescence or silence, when the circumstances require an answer, or other conduct, may amount to an admission. Civil Code (1910), § 5782. “Estoppel by silence arises where a person who by force of circumstances is under a duty to speak refrains from doing so and thereby leads the other to believe in the existence of a state of facts in reliance upon which he acts to his prejudice.” 16 Cyc. 681. “Negligent silence may work an estoppel as effectually as an express representation.” Tobias v. Morris, 126 Ala. 535, 551 (28 So. 517). “It is a just and well-recognized principle, that ‘He who is silent when conscience requires him to speak shall be debarred from speaking when conscience requires him to keep silent.’” Harris v. American Building etc. Association, 122 Ala. 545, 554 (25 So. 200). “Silence is a species of conduct and constitutes an implied representation of the existence of the state of facts in question, and the estoppel is accordingly a species of estoppel by misrepresentation.” 16 Cyc. 181, note 10. “An equitable estoppel arises upon a state of facts which -renders its application in the protection of rights equitable and just.” 16 Cyc. 682. In later cases the wisdom and justice of the principle of estoppel in pais, or equitable estoppel, are fully recognized, and the common saying in the earlier reports that estoppels are odious and are not favored in law is no longer approved. 16 Cyc. 683, 684. In the instant case, when counsel for the defendant,, who was an officer of the court, by his silence allowed the court to believe erroneously that the giving of the notice as to attorney’s fees had not been denied by the defendant, and that there was no issue on this point, he was, in our judgment, estopped by this conduct from raising this- question after the direction of the verdict against his client. While it vites considered necessary, in elaborating our ruling, to comment plainly and forcibly on such conduct, it was not intended as a harsh or severe criticism of one who, we doubt not, believed he was entirely within his legal rights, under the circ-um [701] stances, in remaining silent. The ugly-sounding word “fraud” is of course herein used in its legal sense only. Under the peculiar facts of this case the plaintiff in error will not be heard to complain that the court directed a verdict against it for the attorney’s fees. Judgment -affirmed. Jenkins and Bloodworth, JJ., concur.