First National Bank v. Marshall & Ilsley Bank of Milwaukee

Grant, J. (after stating the facts). 1. The defendant requested the court to direct a verdict for the defendant upon the ground that the bill of • sale was in effect a chattel mortgage; that it was not upon file when the defendant extended credit to the Watervale Company, and was therefore void as to it. If this bill of sale had been given by the Watervale Company to the plaintiff, or if said company had succeeded to the rights of Mr. Hale in the disputed property, and it conclusively appeared that it had done so, then the defendant would, undoubtedly, be right in its contention. The disputed question of fact was whether Mr. Hale had so transferred it. Neither he-nor his associates nor the Watervale Company contend that it was. The bill of sale by Hale to the company expressly excepted it. Mr. Hale testified that it was not included. The plaintiff never assented to the possession, [124] control, or ownership of the corporation in this property. The fact that it was left there by the mutual consent and knowledge of all the parties does not estop the plaintiff to assert its rights under its bill of sale. It was perfectly competent for plaintiff and Mr. Hale to make this arrangement. If it be a fact that Mr. Williams and Mr. Hale did include this in the statements they made to the defendant bank, this would not conclude the plaintiff, unless it had knowledge at the time that it was included, and kept silent. There was a fair dispute in the testimony as to the title of this property, and it was properly, and under a careful charge, submitted to the jury. So, also, was the question whether the plaintiff withheld its bill of sale from ecord for the purpose of enabling the Watervale Company to obtain a loan from the defendant. 2. It is insisted that it was the duty of the plaintiff, in reply to the letter of the defendant inquiring as to the character and financial standing of Mr. Hale, to state the indebtedness of Mr. Hale to it. There might be circumstances where this would be required. This letter, however, contained no intimation that the defendant bank was intending a loan to Mr. Hale. In fact, it contemplated a loan to the corporation, and made the loan to it; but no intimation of this purpose is found in the letter. In order to create an estoppel in pais, it must appear that the party making the representations knew or was informed that the party to whom they were made intended to rely upon them. The rule applicable to this case cannot be better stated than it was by Lord Campbell, in Howard v. Hudson, 2 El. & Bl. 10: “If a party willfully makes a representation to another, meaning it to be acted upon, and it is so acted upon, that gives rise to what is called an ‘estoppel.’ It is not quite properly so called; but it operates as a bar to receiving evidence contrary to that representation, as between those parties. Like the ancient estoppel, this conclusion shuts out the truth, and is odious, and must be strictly made out. The party setting up such a bar to the reception of the truth must show both that there was a willful intent [125] to make him act on the faith of the representation, and that he did so act.” See, also, Andrews v. Lyon, 11 Allen, 349; Hyde v. Powell, 47 Mich. 156; Heyn v. O'Hagen, 60 Mich. 150; Pearson v. Hardin, 95 Mich. 369; Pierce v. Andrews, 6 Cush. 4 (52 Am. Dec. 748); Freeny v. Hall, 93 Ga. 706; Meisel v. Welles, 107 Mich. 453, where the meaning of the term “willful” is discussed. No statement of liabilities was called for, but only his character and financial standing as a business man. Banks, as well as individuals, frequently write for information of this character. Business men of the highest standing and credit often obtain loans at banks for carrying on their business. When an inquiry comes to such bank asking simply for the character and financial standing of the merchant, the bank is not bound at its peril to report any loans which such merchant may have at its bank. Banks, too, often make such inquiries, not for themselves, but for their local customers. The plaintiff was not therefore, as a matter of law, estopped by its letter in this case. The entire question was submitted to the jury, under instructions very favorable to the defendant. 3. Error is assigned upon that portion of the instructions above stated in regard to the statements found in the letter of Mr. Hale of December 30, 1893, to Mr. Williams, and to the letter of Mr. Dunham, the cashier, to Mr. Ilsley. The proof was not conclusive that Mr. Hale wrote the letter to Mr. Ramsdell. He is not positive that he wrote it, and he stated that he found no copy of such letter in his letter book, in which it was his custom to keep copies of his letters. Mr. Ramsdell was a witness, and was not asked by either party in regard to this letter. Under the evidence, the question was one of fact for the determination of the jury. 4. It is claimed that the bill of sale upon its face is too indefinite and uncertain to have effect as security. This might become important if Hale had conveyed the title to [126] his company, and if it were conclusively established that the defendant bank had obtained a valid lien upon the property as that of the Watervale Company. As between the vendor and the vendee, of the mortgagor and the mortgagee, the bill of sale could not be held indefinite and uncertain for failure to state the amount secured thereby. Under the instructions, the jury must have found that the title was not conveyed by Hale to the company. Therefore the defendant is not in position to raise this question. 5. Complaint is made of the rejection of certain testimony offered in regard to statements claimed to have been made by Mr. Hale after the defendant had obtained its mortgage. There was no offer to connect the plaintiff with these statements, and therefore they could not be binding upon it. The testimony was properly rejected. We find no error upon the record, and the judgment is affirmed. Long, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., did not sit.