161 P. 386 | Or. | 1916
delivered the opinion of the court.
“The defendant then also, as I have already told you, has pleaded that wMch is denominated as estoppel. And you will remember the fact alleged with regard to that particular defense is this: That upon the inspector, Goodhart, sending to the plaintiff a letter making inquiry as to the matter of these particular charges against Ms account, he answered as has already been read to you with regard to it. And it is alleged in the answer that for this reason the plaintiff is estopped; that is, by his own answer. What is meant by that is that he is prevented from asserting his right or his claim to this particular money, because he made the answer which he did, and it becomes necessary for me, gentlemen, to explain the law applicable to that particular feature of the case, and it is also quite an important matter of the law for you to consider in applying it to the facts in this case. I cannot better illustrate the proposition of estoppel, gentlemen, than by this: We will suppose that one of you jurors*104 owned a horse, and another person, a third party, came by and made a bargain with yet someone else for the horse, in yonr presence, the horse being yours, and you stood by and allowed the purchaser to pay his money for your horse and take it, supposing that it belonged to the seller, whereas, in truth and in fact, it belonged to you; the law says that under such circumstances as that, although the horse belonged to you in fact, you could not now assert it, because it would be fraud and imposition upon the person who was led to pay his money for the horse when you by acting at the time could have prevented it. And the law says that an estoppel is that in which a person by his own act which he has committed precludes himself from asserting the truth; and what they intend to say by this answer is that the plaintiff in this case, being asked at the time as to the facts in the matter, that he did not assert the truth, that is, contrary to what he now says, and for that reason he is estopped to state the truth, that is, to recover the money. Plaintiff says it belonged to him, he did not authorize Sheridan to make this loan to himself or these parties, and says he was dealing with the bank. They say that he should have said that at that time. Now, as to that, gentlemen, I state to you that if you find under the law as I shall give the same to you in this case that the plaintiff has deposited the money as claimed in this bank, and that there is still due him an amount of money, if you find that under the law as I shall give it to you, applying it in this case, then he is not estopped in this case to assert his rights and to recover whatever you may find to be due him. This letter, which you have seen and which has been admitted — the plaintiff admits that he made this answer — is allowed to go before you, and you have the right to consider it. It is in the nature of a declaration made by him, you giving it such credit as you may deem it to be worth, and, after applying it, taking the answer he has made and all of the circumstances •in the case, you find that the evidence is with the plaintiff, that the facts are as he claims them to be in regard to that contract or the authority which was given to the bank, then, notwithstanding the fact that he may*105 have written the letter and which he admits that he did, he still would be entitled to recover what you find due him in this action. The reason for that is that the bank inspector did not represent the bank. And it is not in evidence that the bank in any way changed its' position by reason of any answer that the plaintiff made. And so I say to you that so far as being es-topped, conclusively estopped, to assert the claim which the plaintiff is making in this action, he is not estopped by the fact that he has written that letter; but if you should find from the evidence, and you have a right to consider the letter for that purpose, that he authorized Sheridan to make the loan or loans, and that the dealing was as claimed in defendant’s answer as set forth, if you find that fact by preponderance of the evidence, then the plaintiff could not recover in the case. And I instruct you in connection with that fact that you have a right to consider the transaction, where it took place, the manner of dealing, under the circumstances, dealing with the bank, and then make up your mind from all of the evidence in the case as to whether or not the plaintiff authorized Sheridan to take this money from the bank, or whether he gave authority to the bank to lend his money as he stated. And I instruct you that, if he did authorize the bank to lend his money, that would not authorize Sheridan or any officer of the bank to appropriate his money. ’ ’
In defendant’s view of the case the vice of this instruction, the sting in the tail of the scorpion, so to speak, is embodied in these words:
“And the law says that an estoppel is that in which a person by his own act which he has committed precludes him from asserting the truth; and what they intend to say by this answer is that the plaintiff in this case, being asked at the time as to the facts in the matter, that he did not assert the truth, that is, contrary to what he now says, and for that reason he is estopped to state the truth, that is, to recover the money. Plaintiff says it belonged to him, he did not authorize Sheridan to make this loan to himself or these parties, and*106 says lie was dealing with the hank. They say that he should have said that at that time.”
If we substitute the word “fact” for “truth,” the instruction would substantially conform to Mr. Bouvier’s definition of an estoppel, which he declares to be primarily:
“The preclusion of a person from asserting a fact by previous conduct inconsistent therewith on his own part, or the part of those under whom he claims, or by an adjudication upon his rights which he cannot be allowed to call in question.”
While this definition may cover many instances, it is too narrow to cover all. A more comprehensive one is given in Demarest v. Hopper, 22 N. J. Law, 599, quoted with many others of like character in 3 Words and Phrases under this title:
“An estoppel is where a man is concluded and forbidden by law to speak against his own act or deed; yea, even though it is to say the truth.”
Standing alone, that part of the definition given by the court in the instant ease would be misleading, but, taking the whole instruction together, it is apparent that the court did not assume the truth of the statement made by plaintiff upon the witness-stand in explanation of his contradictory statement made to the bank examiner. For instance, the court said in defining estoppel:
“WTiat is meant by that is that he [plaintiff] is prevented from asserting his right or his claim to this particular money because he made the answer which he did.”
—referring to plaintiff’s answer to the Goodhart letter, and again:
“Plaintiff says it belonged to him; he did not authorize Sheridan to make the loan to himself or these*107 parties. They say he should have said that at that time.”
Further, it will he seen from that part of the charge first quoted that the court, while holding, as this court held in previous cases, that the letter was not technically an estoppel, instructed the jury in effect that they could consider it for the purpose of determining the question as to whether the plaintiff had, in fact, authorized Sheridan to withdraw the money, and that, if they found such to be the case, the plaintiff could not recover. The effect of the whole charge upon this subject was to submit to the jury the question of the truthfulness of his statements made in the letter to the bank examiner. We do not think that, considered as a whole, the instruction contains reversible error or that the jury could have been misled by it.
The judgment is affirmed. Affirmed.