15 N.M. 365 | N.M. | 1910
OPINION OF THE COURT.
From the view we take of this case it will be unnecessary to discuss the numerous assignments of error, for the judgment of the lower court must be reversed and judgment entered for the .appellant. In Moore v. Beiseker, 147 Fed. (C. C. A.) 367 (Eighth Circuit) the court said:
“In the Kansas Union Life Insurance Company v. Burman (C: C. A.) 141 Fed. 835, where an insurance agent for the insurance company, under .a salary contract and for certain commissions, sent in his resignation specifying certain grounds therefor, which did not include the objection that the insurance company had failed to renew its license in the state where the agent was operating under the contract, and in his suit to recover damages for a breach of the contract for employment he assigned, inter alia, such failure to renew the license as a ground for recovery, it was held that he was estopped from alleging such ground as the cause of his resignation. The court said:
“It is a wholesome rule of law, instinct with fair play, expressed by Mr. Justice S. W. Anye, in Railway Company v. McCarthy, 96 U. S. 267, 24 L. ed. 693, that ‘where a partjr gives a reason for his conduct and decision touching anything in a controversy, he cannot, after litigation has begun, put his conduct on another and different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law-.’ This principle has been applied in the following instances: Davis v. Wakallee, 156 U. S. 690, 39 L. ed. 578, where a bankrupt obtained his discharge, claiming that the judgment against him was not affected by it, it was held that he could not, in a subsequent action on the judgment deny its validity. In Davis, etc., Company v. Dix, 64 Fed. 411, where it was held that the purchasers of a creamery repudiating the contract on the ground of fraudulent representations, could not thereafter set up an interpolation in the contract. In Harriman v. Myer, 45 Ark. 40, where it was held that the defense that a tender was not made in ready money was not admissible where the.prior objection was to inadequacy of price, etc., etc.”
Also in Farmers’ Milling Co. v. Mill Owners’ Mutual Ins. Co., Iowa, 103 N. W. 207, where it is said: “After distinctly and definitely resting denial of liability upon the ground that the policy was suspended and cancelled because of non-payment of assessments, the defendant cannot be permitted, after suit has been brought and costs incurred by the plaintiff, to mend its hold ¡and assert some other ground of defense.”
And in the case of Continental Insurance Company v. Waugh, (Nebraska) 83 N. W. 81, the rule is applied as follows: “Having assigned as a reason for refusal to pay the alleged failure of the assured to preserve his books of account, and presenting that objection alone as a justification for disavowing its liability under its contract of indemndy, it cannot after litigation is begun, be heard to urge other and additional grounds for refusing the payment for the loss sustained.”
See also Supreme Tent K. of M. of the World v. Volkert, Ind., 57 N. E. 203 and cases cited.
This general rule is laid down in 16 Cyc. 786, in the following language: “So where a person has acted or refrained from acting in a particular way upon the request or advioe of another, the latter is estopped to'take any position inconsistent with his own request and advice, to the prejudice of the party induced to act.”
The judgment of the lower court is reversed and remanded with directions to the court below to reinstate the case upon the docket and enter judgment in favor of the ¡appellant, Cordelia Irwin, for the amount due on the beneficiary certificate sued on, with such interest and costs as the law provides. And it is so ordered.
