Telford v. Frost

The folio wing opinion was filed January 28, 1890: Cassoday, J. The learned counsel for the defendant is undoubtedly right in claiming that the optional written contract held by the plaintiff against Colwell gave to the plaintiff an interest in the land therein described, within the meaning of sec. 2302, R. S. This being so, he strenuously contends that the plaintiff could not surrender the same except by deed or conveyance in writing subscribed by him, and that, as such surrender was a part of the consideration of the promise sued upon, he improperly recovered. The power to surrender such interest, however, is not thus limited by that section. As applied to this case, it reads: “ No estate or interest in lands . . . shall be . . . surrendered . . . unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party . . . surrendering . . . the same.” Thus the section provides two ways of surrendering such estate or interest without any deed or conveyance in writing. One is by the “ acts ” of the parties concerned. The other is by “ operation of law.” These two methods are frequently and perhaps generally present and coalesce in the same transaction. Such surrendering is nothing more than the effectual yielding up of such estate or interest to one having the immediate reversion or remainder wherein such particular estate or interest may merge. To be effectual, [175] however, such act or acts must be inconsistent with the continuance of such former estate or interest, and must, moreover, be actually accepted and acted upon by the other, and, in fact, all the parties concerned. When such acts and acceptance so concur under such circumstances, the party thus surrendering is estopped from subsequently disclaiming the effectiveness of such surrender. These views are in harmony with numerous English cases. Whitehead v. Clifford, 5 Taunt. 518; Thomas v. Cook, 2 Barn. & Ald. 119; Hamerton v. Stead, 3 Barn. & C. 478; Johnstone v. Hudlestone, 4 Barn. & C. 933; Hall v. Burgess, 5 Barn. & C. 332; Bees v. Williams, 2 Cromp., M. & R. 581; Nickells v. Atherstone, 10 Q. B. 944. The same doctrine has frequently been applied in states having the same statute. Wheeler v. Walden, 17 Neb. 122; Livingston v. Potts, 16 Johns. 28; Van Rensselaer’s Heirs v. Penniman, 6 Wend. 569; Bedford v. Terhune, 30 N. Y. 462, 86 Am. Dec. 401; Allen v. Devlin, 6 Bosw. 1; Clemens v. Broomfield, 19 Mo. 121; Lamar v. McNamee, 10 Grill & J. 116. It is well established that the doctrine of estoppel in pais extends to real estate. Brown v. Wheeler, 17 Conn. 345, 44 Am. Dec. 550; Storrs v. Barker, 10 Am. Dec. 316;. Godeffroy v. Caldwell, 56 Am. Dec. 360. This court has expressly held that “ an actual surrender of possession of the premises by the lessee to the lessor, and a leasing of them by the latter to a third party, will have the effect of a surrender of the lease.” Witman v. Watry, 31 Wis. 638. It remains to apply the rule stated to the case at bar. In view of the verdict in favor of the plaintiff, we must assume that the plaintiff and defendant made a parol agreement to the effect alleged in the complaint; that, in pursuance of that agreement, the plaintiff induced Colwell to meet the defendant and make the agreement with him mentioned in the foregoing statement, whereby Colwell [176] agreed to convey the lands mentioned to Beifield for the price named. This written contract on the part of Colwell to thus convey having been entered into by the procurement and at the request of the plaintiff, he thereby became effectually estopped from subsequently disclaiming its effectiveness. Nor can the defendant escape liability from his promise on the ground that the plaintiff previously held such option. It appears that the agreement between the defendant and Colwell was written by the defendant in the name of Beifield, instead of himself; that Beifield and the defendant were together in,the deal. But that in no way changed the defendant’s status in the transaction. Courts have gone so far as to hold “ that a party who procures an instrument to be executed in the name of another, without authority, is estopped from disputing the validity thereof as against one acting upon the faith of its genuineness.” Lowry v. Mayo, 41 Minn. 388. We must hold that the section of the statute cited was no bar to the plaintiff’s recovery. There appears to have been nothing in the relation of the plaintiff to any of the other parties to the transaction that in law prevented him from making a valid contract with the defendant, of the character indicated. The evidence is sufficient to sustain the verdict. Exception is taken because the court stated, in the charge to the jury, that “ if the testimony of the plaintiff outweighs that of the defendant, if only enough to turn' the scales, your verdict must be for the plaintiff.” This is clearly distinguishable from Bierbach v. Goodyear Rubber Co. 54 Wis. 208, relied upon by counsel. It is more like the portion of the charge to which exception was taken in Spensley v. Lancashire Ins. Co. 62 Wis. 452. It is enough to say that the portion of the charge quoted, left the jury free to weigh the evidence, and in fact required them to do so. It manifestly means that the testimony on the part of the plaintiff [177] was to be weighed with the testimony on the part of the defendant, and that they were only to find for the former in case his evidence outweighed the evidence of the latter. The other errors assigned either fall with the conclusions already reached, or are so manifestly unfounded as not to require particular mention. By the Court.— The judgment of the circuit court is affirmed. A motion for a rehearing was denied March 18, 1890.