McAdams & Co. v. Smith

WALKER, P. J. — The appellants could not have been prejudiced by the action of the court in sustaining the demurrers to the original third and fourth counts of the complaint on some of the grounds assigned; as, even if those counts are regarded as sufficiently showing a conversion by the defendants of the cotton in question, yet the appellants, under the second count of their complaint, the demurrer to which was overruled, had the benefit of the claims based upon the conversion as alleged in the third and fourth counts. Written charges 2 and 3 requested by the plaintiffs were properly refused as each of them failed to hypothesize the existence of a state of facts giving rise to an estoppel upon the defendant M. Y. Smith to assert a claim to the cotton in question in opposition to the claim of the plaintiffs to that cotton, based upon the mortgage of Gruff Smith to them, in that in neither of those charges Avas it hypothesized that the plaintiffs relied upon or Avere influenced by the statement of M. V.' Smith which Avas referred to. It is an essential element of an estoppel in pais that the person invoking it has been influenced by and has relied on the representation or conduct of the person sought to be estopped.— 16 Cyc. 734. [519] In reference to any claim that may be made that M. Y. Smith estopped himself to set up a claim to .the cotton in question by a statement to the effect that he was not going to advance Guff Smith any supplies to make a crop, it is to be said that by such a promise or declaration of intention he did not estop himself from a future acquisition of a lien on the crop, as one’s reliance upon another’s promise as to his future conduct is not to be given the effect of an estoppel upon the latter, however liable he may be for a breach of contract.— Weaver v. Bell, 87 Ala. 385, 6 South. 298. There was evidence tending- to discredit the testimony offered in support of the claim to the cotton in question which was asserted by the defendant M. V. Smith, and also evidence tending to prove that some of the cotton removed and disposed of by him was subject to the recorded mortgage made by the defendant Guff Sinith to the plaintiffs. There Avas also' evidence tending to prove that the defendant Guff Smith so co-operated with his codefendant in the conversion of cotton, subject to the mortgage to the plaintiffs, as to render the two defendants jointly liable for the wrong. With the evidence in this condition, it was error to give the affirmative charge in favor of the defendant Guff Smith.— Pippin v. Farmers’ Warehouse Co., 167 Ala. 162, 51 South. 882; Powell v. Thompson, 80 Ala. 51. Because of that error, the judgment must be reversed. Beversed and remanded.