Holman v. Boyce

The opinion of the court was deliv ered by ROWELL, J. The orator’s letter of March 29, 1888, in reply to one from the defendant Boyce, in which the orator denied the existence of the agreement of February 14, 1878, found by the master, and on which the orator now seeks to stand, did not estop the orator from claiming before the master the untruth of his denial, if he did so claim; nor does it disentitle him to the benefit of that agreement now that it is found, it not appearing that Boyce or any of the other defendants was thereby induced to alter their conduct. The rule applicable here is thus stated in Heanc v. Rogers, 9 B. & C. 577 : “ There is no doubt that the express admissions of a party to the suit, or admissions implied from his conduct, are evidence, and strong evidence, against him; but we think that he is at liberty to prove that such admissions were mistaken, or were untrue, and is not estopped or concluded by them, unless another person has been induced by them to alter his conduct, in which case the party is estopped from disputing their truth with respect to that person and those claiming under him and that transaction, but as to third persons he is not bound.” This rule is approved in Newton v. Liddiard, 12 Q. B. 925. See also 2 Whart. Ev. s. 1,077, and cf. Stowe v. Bishop, 58 Vt. 498. [321] Gordon held the mortgage in question against Church and Mattoon. Bates bought the mortgaged premises and assumed and agreed to pay the mortgage debt as a part of the purchase-money. Disagreement arose between Bates and Gordon about extra interest that the former claimed to have paid the latter, whereupon Gordon left the notes with a lawyer for collection, and the lawyer notified Bates that they must be paid. Thereupon Bates arranged with the orator to buy and hold the notes, and for the purpose of ascertaining the amount due on them, Bates and Gordon, with their attorneys and the orator, met on February 14, 1878, when such proceedings were had that Bates and Gordon agreed that the amount then due was $416.65, and an indorsement to that effect was then made thereon. In a few days after, the orator, relying on said agreement, paid Gordon the amount thus found due, and took an assignment of the notes and the mortgage, and now seeks to foreclose the mortgage and to stand on the amount thus agreed upon as the basis for ascertaining the sum due in equity. The defendants seek to compute the notes anew, claiming that by reason of the payment of extra interest and otherwise, there was much less due on them on February 14, 1888, than was then agreed. We think that Bates, if living, would be estopped to deny that there were $416.65 due on the notes when the orator took them, and that therefore the administrators of his estate are estopped, and the other defendants, who claim under the administrators. The rule is that when one takes an assignment of a chose in action by the debtor’s procurement or with his assent, and on the faith of representations made by him at the time, the debtor is estopped to impeach the chose by a defence inconsistent with his representations, even though the defence is usury. Payne v. Burnham, 62 N. Y. 69; Smyth v. Munroe, 84 N. Y. 359. The Union Dime Savings Institution v. Wilmot, 94 N. Y. 221, was an [322] action to foreclose a mortgage, and the defense was that the mortgage was void for usury. The mortgagor and the mortgagee represented to the plaintiff that the mortgage was a purchase-money mortgage, without defence, and that the full amount named therein was due thereon. Relying on this the plaintiff bought the mortgage at a discount of seven per cent from its face, and took an assignment of it. It was held that the mortgagee and the mortgagor were estopped to deny the validity of the mortgage, and precluded from interposing the defence of usury, and that Wilmot, who was alone defendant, was bound by the same estoppel, as he had bought the premises subject to the mortgage. Decree affirmed and cause remanded.