97 Ark. 43 | Ark. | 1910
(after stating the facts). If appellant is estopped, it is because of the alleged representation of its vice president, Morton, made in the written statement in evidence. According to the testimony, Harris, trustee for the First National Bank of Fayetteville, requested Boles to get a statement of the amount that Boles was due it on the “home” and “mountain” places. Boles communicated this request to Morton, telling him that he was on a deal with Harris, and that Harris wanted the information. Morton made the statement in compliance with such request. Conceding that the statement was such a representation' as under the circumstances would estop appellant from asserting any claims contrary to what was contained in the statement, still -the statement shows that there was a “bal. $1,350 indorsed E. Pitkin and Elias Duncan.” But it does not show whether this amount was secured by mortgage on the “home” place or the “mountain” place. It must have been secured by one or the other. For Morton was requested to give Harris a statement of what was due >by Boles “on the home and mountain places,” or, in another form, a “statement of what we owe and what it is secured by.” Now, who can tell from the above statement whether the balance of $1,350 was secured by the “home” place or the “mountain” place? From the request made of Morton to show what was due on the “home” and “mountain” places, or to show what was due and how secured, the statement must have been intended to show that this sum was due and secured by mortgage on one- or the other of these places. It could not reasonably be inferred that this sum of $1,350 was not secured, for the request was to show how the amount due was secured. Harris was not interested in any amounts that were not secured. What right had Harris, as trustee, to assume .that the amount of $1,350 was secured by the “mountain” place, and not by the “home” place, or that it was not secured? None whatever.
The statement was too indefinite to constitute an estoppel against appellant as to the balance of $1,350 mentioned therein.
According to the testimony, it was intended by the statement to give Harris notice that the amounts named were due appellant and were secured by mortgage either on the “.home” place or the “mountain” place. The statement, being too indefinite to indicate which of the places was meant, could not constitute an estoppel against appellant. It was not shown that Harris, before making the loan, took any steps to have the statement or representation made more definite. This be might easily have done by consulting the record of mortgages. Of course, any statement that Boles made to him concerning this statement and what it was intended to represent could not bind appellant. All such statements would be res inter alios actae as to appellant, for Boles in securing the statement was representing Harris and not appellant.
“Before an estoppel can be raised, there must be certainty to every intent. The facts alleged to constitute it are not to be taken by argument or inference. 16 Cyc. and numerous cases cited in note. As estoppel bars the truth to the contrary, the party setting it up must prove it strictly. Nothing • can be supplied by intendment. First Nat. Bank v. Marshall & Ilsley Bank, 65 N. W. 604, and cases cited; First Nat. Bank v. Marshall & Ilsley Bank, 83 Fed. 725, 34.
The evidence does not warrant the conclusion that appellant, through its vice president, Morton, intended by its statement to deceive Harris, and malee him believe that appellant had no lien on lot x, block 1, in the city of Fayetteville, for the sum of $1,350. The most reasonable inference from the statement, taken in connection with .the other evidence, is to the contrary. Nor does the evidence warrant the conclusion that Morton was so grossly negligent in making the statement in the loose form given as to indicate an intention on his part to mislead and deceive Harris.
The statement was made rather to accommodate Boles and Harris, than otherwise, and was not in regard to any transaction in which appellant was interested. “This equity” (estoppel), “being merely an instance of fraud, requires intentional deceit, or at least that gross negligence which is evidence of an intent to deceive.” 2 Pom. Fq. Jur., § 807, note, citing numerous cases. See Jowers v. Phelps, 33 Ark 465.
The judgment is therefore reversed, and the cause is remanded with directions to enter a decree in favor of appellant in accordance with this opinion.
