6 Ga. App. 816 | Ga. Ct. App. | 1909
The decision in this case turns upon whether the plaintiff in error, by the election of a remedy inconsistent with that which he is now attempting to assert, has waived a right which he might otherwise have enforced. It is well settled that one may pursue any number of concurrent and consistent remedies. It is also settled, as well argued by counsel for the plaintiff in error, that an estoppel does not generally result, unless the opposite party is misled and caused to act to his prejudice. To constitute an estoppel by conduct, there must be, (1) a false representation or concealment of fact; (2) it must be within the knowledge of the party making the one or concealing the other; (3) the person affected thereby must be ignorant of the truth; (4) the person-seeking to influence the conduct of the other must act intentionally for that purpose; (5) the person complaining must have been induced to act by reason of such conduct of the other; and (6) he must in fact act upon it in such a manner as to change his position for the worse. Tinsley v. Rice, 105 Ga. 290 (31 S. E. 174); Roberts v. Davis, 72 Ga. 819; Moss v. Cooley, 113 Ga. 1047 (39 S. E. 471); 3 Words & Ph. 2508. While, however, this case was argued apparently with a view of showing that nothing in the conduct of Kennedy amounts to an estoppel, and it may be conceded that Manry was in no sense deceived or overreached, and that he has not sustained loss by any act of Kennedy’s, still, in our opinion, none of these has any bearing upon the question before us. Let it be conceded that Manry was as conversant with all of the details of the transaction between Kennedy and Mason as Kennedy himself, and that he acted entirely upon his own judgment, influenced by nothing that Kenned}r did or said; Kennedy would not be estopped by conduct, but it would not follow from this that after having elected to foreclose his note as a mortgage, he could change his base, disaffirm his sale, and proceed by trover to assert that the mule in question was his own property.
The defense of the defendant in error does not depend upon the equitable doctrine of estoppel in pais, the essentials of which we have noted above, but rather upon the plaintiff’s election of a remedy inconsistent with the one he now seeks to assert, whereby he waived his right to assert a right which he possessed, independently of its effect upon the other party. When Kennedy was about to assert his rights under the notes in the record, he had the option either to proceed to foreclose his notes as mortgages, or to assert the title which he had reserved therein and proceed by trover to recover the property. In other words, he had the option either to affirm or to disaffirm the sale of the mules. This right was not affected by Maury's knowledge or lack of knowledge, and could be asserted whether its effect upon Manry was favorable or injurious. He had the option to treat the mules either as his own property or as the property of Ralph Mason. By the foreclosure of the mortgage he elected to disaffirm his own title and to assert in court that the mules were the property of Mason, and subject to sale as Mason’s property. Waiver is voluntary and intentional, and estoppel in pais may be voluntary and unintentional. Estoppel results from an act which may operate to the injury of the other party; waiver may
Judgment affirmed.