Ullman v. William Eggert & Co.

Gary. J. From the voluminous affidavits and counter affidavits in this record, it appears, or seems to appear, that in the city of New York there has been for many years a firm of tobacconists using the firm name of William Eggert & Co.; that in April, 1885, the individual who was the company in the firm, left it, and another took his place, the firm name continuing without change; that the old firm was indebted to the appellees; that the firm of Ullman, Bloom & Co., in Cincinnati, of which appellant is a member, bought goods of and were indebted to the new firm; that, without knowledge by either the appellant or the appellees of the change in the New York firm, they amicably arranged that the appellees should commence, in the Circuit Court, an attachment suit against' William Eggert & Co., and summon the firm of the appellant as garnishees therein. After this had been done, so far as could be, by summoning the appellant, and he had answered, confessing an indebtedness by his firm to the New York firm sufficient to cover the claim of the appellees, he discovered that the firm in New York to which his firm was indebted was not the same firm that owed the appellees. Within no reasonable space could any summary of the charges and counter charges of these parties be made. It is enough to say that no facts appear by which the appellant is estopped to set up the change in the New York firm. Where there is no relation of trust, or by contract between the parties, it is of the essence of an estoppel in pais that the party against whom it is set up should have had. knowledge of the facts at the time of the conduct by which it is claimed he is estopped. Bigelow on Estoppel, 467; Dinet v. Eilert, 13 Ill. App. 99; People v. Brown, 67 Ill. 435. That ground fails here. It would be unjust that the firm of the appellant, or he individually, should be compelled to pay to the appellees the debt of the old New York firm, unless that payment would discharge an equal amount of their indebtedness to the New York firm. That it would have that effect is not asserted by the appellees. Lyndon v. Gorham, 1 Gallison, 367, and Upham v. Naylor, 9 Mass. 490, are direct authorities that a debtor of one firm can not be held as garnishee of another, though there be a member common to both firms. The Circuit Court should have permitted the appellant to present his defense. This opinion is not to be understood as' deciding that he has any defense. The facts are to be ascertained hereafter. The judgment is reversed with directions that the appellant have leave to refile the second answer filed February 11, 1888. Reversed and remanded.