Gundry v. Vivian

By the Court, Cole, J. It is too late, at this stage of the cause, to object that there is a defect of parties defendant. Whether, therefore,-it would have been requisite to make the creditors of Jenkins, Barringer & Co. parties, ha,d the objection been seasonably taken, we shall not stop to inquire. Our statute requires that when there is a defect of parties, the objec [440] tion must be taken either by answer or demurrer; otherwise it shall be deemed to be waived. Sections 5, 8 and 9, chap. 125. And as the objection was not taken in the manner required by law, it is now too late to insist upon it. It is quite clear that the instrument sued on operated as an assignment of the special fund in the hands of the assignee belonging to the Iowa County Bank. But it is insisted that the assignment was subject to equities existing between the bank and Jenkins, Barringer & Co., and that if the latter could have successfully resisted the collection of the account in favor of the bank, the assignee can. And that Jenkins, Barringer & Co. could have prevented a payment of this account, is said to be most manifest, since there was a failure of consideration for it, inasmuch as the bank made no provision for meeting the drafts at maturity. If this were all there was of the transaction, and Jenkins, Barringer & Co. had said or done nothing which estopped them, or any other person representing their interest, from saving that they did not owe the bank anything, then this proposition could not be contested. But how stand the facts? Jenkins, Barringer & Co.make an assignment of their property for the benefit of their creditors. In the assignment they represent that they owe the bank the amount of this account, and place the bank among their list of preferred creditors. This was before the time drafts sold by the bank to Jenkin, Barringer & Co. matured, and when the latter could have raised no legal objection to the collection of the account. At this time, the respondent purchased of the bank the special fund in the hands of the assignee for its full value, and in good faith. He undoubtedly then trusted to and relied upon the representation contained in the assignment, that Jenkins, Barringer & Co. owed the bank $558.04. Had he not a right to rely upon this written representation in the assignment to that effect, and act upon it ? It appears to us he had. Suppose Jenkins, Barringer & Co. had made no assignment, but the respondent had gone to them on the 11th of September, 1861, [441] and inquired if this account of tbe bank against them was just and would be paid, and, upon being told that it was correct, had purchased it for value. Would Jenkins, Barringer & Co., when afterwards sued upon the account, be permitted to .say that they did not owe the amount; that for something which subsequently occurred, the consideration for that account had failed ? Most certainly, as it appears to us, they would be estopped from making any such defense. For an admission that the account was correct would induce the respondent to buy the same, when perhaps he otherwise would not, thus “ actually leading him into a line of conduct which must be prejudicial to his interest unless ” Jenkins, Barringer &>Co. were estopped from contesting its validity. This is what is defined as an estoppel in pais. See State ex rel. The State Bank vs. Hastings, 15 Wis., 75, and authorities there cited. The case,* as it now stands, does not appear to be in principle distinguishable from the one supposed. Jenkins, Barringer & Co. make their assignment, representing that they owe the bank a certain amount, and direct the assignee to pay this sum as one of their preferred debts. The respondent purchases this fund for value, relying upon the truth of this representation. Shall the assignee, for anything which afterwards occurred, be permitted to say that the assignors did not owe this debt, and that he has no funds in his hands to be applied to its payment? We think not, and that, too, upon the principle and for'the reason that Jenkins, Barringer & Co. having thus represented, in a solemn instrument, that they owed the debt, and provided a fund for its payment, neither they nor their as-signee shall afterwards say the debt is not due, and thus defeat a purchaser in good faith for value. Some stress is laid upon the clause in the assignment which directs the assignee to pay the debts due the persons and firms designated in schedule No. 1, “ all the payments to be made according to the amount actually due to the several persons and firms, whether correctly stated in said schedule class No 1, [442] or not.” We do not suppose tbat it was intended by this language to restrict the power of the assignee to paying the debts mentioned in the schedule, to the identical persons therein named; or that it required him to insist upon equities which might afterwards arise, whether available to the assignors or not. The power given him in this clause, undoubtedly, was to adjust balances and pay the amount actually due to the several persons therein named, whether the precise amount was stated in the schedule or not. A still further objection is, that the action is against.the appellant personally, while the judgment is against him in his fiduciary character. We do not so understand the complaint. The suit is against the appellant as assignee, and the judgment appears to be in proper form. Eor these reasons the judgment of the circuit court is affirmed.