Kingston v. Walters, 16 N.M. 59

Kingston v. Walters

16 N.M. 59 | N.M. | 1911

OPINION-.

ABBOTT, J.

It is made clear by the evidence that, after giving the plaintiffs the memorandum in question/ the defendant did orally agree that they might have more than fifteen days for making the next payment required. The evidence is conflicting as to the number of days additional he agreed to give, but there was evidence which would have warranted the jury in finding that it was as many as ten days, which would have ended September 5. Before September 5, the defendant had refused to receive the $100 telegraphed him, on the ground that it came too late. If, then, the verbal agreement of the defendant to extend the time fixed by the written memorandum for making the second payment was valid, the verdict of the jury should stand, otherwise it should not.

1. This is the second appearance here of this cause, and the decision of this court in 14 N. Mex. 368, holding, in effect, that a subsequent verbal modification of the time of performance fixed by a written agreement for the sale of real estate, will be regarded, in a court of equity at least, as valid, must stand as the law in this case, and we think the doctrine need not be limited to equity. It is stated in 20 Cyc. 287, that “An eral agreement for an extension of the time of performance of a written contract within the statute of frauds which does not, in effect, amount to making a new contract within the statute, is valid.” And this view is sustained in Smith v. Loomis, 74 Me. 503.

2 But, in addition to what was then considered by the court, there is now before us the evidence from which .it clearly appears that the defendant should be estopped to set up the defense that the plaintiffs did not make the payment of $200 within fifteen days, as provided for in the written agreement, when they had -his assurance, on which they relied and acted, that they might take more time. Where a representation as to the future relates to an intended abandonment of an existing right, and, is made to influence others/and they have been influenced by it to act, it operates as an. estoppel, 10 Cyc. 752, citing Union Mutl. Ins. Co. v. Mowry, 96 U. S. 544; Faxton v. Faxton, 28 Mich. 159; Elliot v. Whitmore, 23 Utah 342; Johnson v. Blair, 132 Ala. 128. In the latter ease the husband of the only heir of a deceased mortgagor of real estate inquired of the holder of the mortgage which was then five years overdue, but on which the interest had been regularly paid and accepted, whether she would allow the mortgage debt to stand a while longer, stating that it would be paid then if she required it, and that he did not wish to have to pay an attorney’s fee for foreclosure. He was assured that if she decided to have it paid she would let him know so that he could pay it without an attorney’s fee, and, íelying on that, payment was not made and nothing more was said or done on either side until about a year later, when an attorney demanded payment and claimed an attorney’s fee. It was held that the mortgagee was estopped from recovering an attorney’s fee. See also: Swain v. Seamans, 9 Wall. 254; Clark v. Dales, 20 Barb. 42; Thompson v. Poor, 147 N. Y. 402, 42 N. E. 13. In Longfellow v. Moore and others, 102 Ill. 294, the court said: “The principle of estoppel would not permit the appellee to throw appellant off his guard and thus obtain an inequitable advantage by .agreeing to extend the time of appellant to perform the contract and then insisting on it as it was written.” The judgment of the District Court is affirmed.

Pote, C. J., having presided at the first trial did not participate, nor did Mechem, A. J., who tried the cause*