Brookman v. Metcalf

By the court, Monell, J. The promise of the defendant,that if the plaintiffs would suspend bringing an action upon the second note, he would abide by the decision of the first action, if it amounted to a promise to pay, was not sufficient to take the note out of the operation of the statute of limitations. Such promise is now required to be in writing (Code, § 110), and signed by the party to be charged. The offer, however, to abide by the decision of the action upon the first note, was made and accepted before the statute of limitations attached to the second note. The consideration of the two notes seem to have been the same, and they were subject to the same defenses. A suit was about being commenced upon the second note before the determination of the first action, probably with the view of saving the statute. The defendant, upon being informed of such intended suit, stated to the plaintiffs that he did not want any further litigation in the matter; and that if they would suspend it, he would abide by the decision of the first. Influenced by such offer, the plaintiffs delayed bringing an action upon the second note until after the decision of the action upon the first note, and until after ■ the statute of limitations had attached. [433] These facts are found by the verdict, which is general upon all the issues, in the plaintiffs’ favor. It seems to me, upon the doctrine of equitable estoppel, or estoppel in pais, the defendant ought not to be allowed to disregard his engagement and set the statute up as a defense. The offer of the defendant was with the intention of influencing the plaintiffs in reference to their contemplated suit upon the second note; and the plaintiffs, acting under such influence, suspended all proceedings; and continued passive until the decision of the first action. No one can doubt, and so the jury found, that the suspension of action upon the second note, was in consequence of the promise of the defendant to abide by the first suit. It is not necessary, to an equitable estoppel, that the party should design to mislead. If his act was calculated to mislead, and actually has misled another, who acted upon it in good faith, it is enough (Manufacturers and Traders’ Bank agt. Hazard, 30 N. Y. R., 216). Mi*. Parsons states the rule thus: “ when aman has made a declaration or a representation, or caused, or in some cases not prevented, a false impression, or done some significant act, with intent that others should rely and act thereon, and upon which others have honestly relied and acted, he shall not be permitted to prove that the representation was false, or the act unauthorized or ineffectual, if any injury would occur to the innocent party, who had acted in full faith in its truth or validity” (2 Pars, on Con., 340.) Instances of estoppels in pais, are numerous. A maker of a promissory note, having represented to the holder, that it was given for value received, cannot set up the defense of usury (Holmes agt. Williams, 10 Paige R., 326 ; Clark agt. Sisson, 4 Duer, 408; Ferguson agt. Hamilton, 35 Barb., 427). In St. John agt. Boberts (31 N. Y. R., 441), the indorsers of a promissory note, who had caused the note to [434] be sold at public auction, were estopped from setting up a want of demand and protest.' In Gaylord agt. Van Loan (15 Wend., 308), the defendant, upon being applied to for payment of certain demands, the person applying saying the demands must be sued unless they were renewed, answered, that he would not avail himself of the staute, and a suit need not be brought on that account—held, an estoppel. And in Brown agt. Sprague (5 Denio, 545), in several ejectment suits, there was an agreement that all should abide the result of one, and proceedings be stayed in the others; and it was held, that the defendant should abide by his engagement. The effect of the defendant’s promise to abide by the decision of the first suit, was to postpone all action upon the second note until after the statute had attached. There was no negligence on the part of the plaintiffs; they were about to proceed to' save the statute, when they were met by the defendant’s promise, and in good faith acted upon it. The case is stronger against the defendant than Gaylord agt. Van Loan (supra); and he must be held to his engagement. The' tender of the bond of indemnity, at the trial and before verdict, was sufficient (2 R. S., 406, § 76; Des Arts agt. Leggett, 5 Duer, 156). ’ The exceptions must be overruled, and judgment ordered for the plaintiffs on the verdict.