22 Ind. App. 633 | Ind. Ct. App. | 1899
Lead Opinion
— The record was filed in this court J anuary 7, 1897, and appellees’ brief was not filed till November 17, 1898. The appellant was plaintiff below, and the only question presented by the record is the sufficiency of the complaint. The complaint was originally in four paragraphs, but the first was withdrawal. The second, third, and fourth paragraphs of complaint wmre challenged by a demurrer, which was sustained. Appellant refusing to plead further, judgment was rendered against him for costs. The ruling on the demurrer is assigned as error.
Counsel for appellant in their brief have so fully, fairly, and specifically stated the facts pleaded that we adopt their language. They say: ' “It is alleged-substantially in each paragraph that the appellant Conrad Kuriger loaned to one Nicholas Weber the sum of five hundred dollars ($500), and took from said Weber for said loan a note signed by Nicholas Weber, and purporting to be signed by Nicholas Joest, appellee, as surety for Nicholas Weber; that, before said note became due, appellant Kuriger, believing the signatures thereon to be genuine, presented said note to appellee Joest, requesting said appellee to buy the same, he, the appellant, desiring to go to Germany, to be gone some time, and wishing to dispose of it before leaving; that said Joest examined said note, ánd what purported to be his signature thereon, and told appellant to return in two days, and if he, the appellee, could raise the money, he would buy the same; that on the day appointed appellant went to appellee,’ Joest, and was told by him that he did not have $500 of loose money. Appellee further told appellant to go to a certain political meeting on an evening a few days from that time; that Nicholas Weber, maker of said note, would be there, and he would then ascertain if said note could not be taken up; that when appellant went to said meeting said Weber was not there; that thereafter he had another conversation with said appellee Joest, wherein said Joest told appellant that he, Joest, would try and dispose of the note before appellant
“The third paragraph of the plaintiffs amended complaint is substantially the same as the second, save and except that the appellant makes the additional allegation that, if appellee had disclosed to the plaintiff Ipelow that the signature of the
“The fourth paragraph of the plaintiff’s amended complaint is substantially the same as the second and third, save and except that the additional allegation is made that, if the forgery of the name of Nicholas Joest had been disclosed to the plaintiff below, he could and would have brought suit against the said Nicholas Weber; that the said Nicholas Weber was at that time solvent, and that said plaintiff, the appellant here, could have secured and collected his debt by process of law.”
The prayer of the complaint is that appellee ought not to be permitted to make the pretended claim that the note sued on is not genuine, and that he be estopped from so claiming. ‘ A copy of the note accompanies the complaint as an exhibit. The note is dated November 1, 1893, due in one year, and is for $500.
From the statement of the facts pleaded, it appears that each paragraph seeks to invoke the doctrine of estoppel in pais, and this is the sole question discussed. Upon the question as to what is ordinarily required to constitute an estoppel by conduct, opposing counsel agree that there must be, (1) a representation or concealment of material facts; (2) the representation must have been made with a knowledge of the facts; (3) the party to whom the representation was made must have been ignorant of the truth of the matter; (4) the representation must have been made with the intention that the other party should act upon it; (5) the other party must have been induced thereby to act. See Roberts v. Abbott, 127 Ind. 83; Bigelow on Estoppel,
Appellees insist that the case of Henry v. Heeb, 114 Ind. 275, is an authority in this case, and must control. We have examined that case with much care, and find that the decision rested upon facts materially different from those in the case at bar, and therefore is clearly distinguishable from it. In that case it was sought to invoke the doctrine of ratification of a forged signature, and the court said: “The distinction made in many well considered cases seems to be this: Where the act of signing constitutes the crime of forgery, while the person whose name has been forged may be estopped by his admissions, upon which others may have changed their relations from pleading the truth of the matter to their detriment, the act from which the crime springs cannot, upon considerations of public policy, be ratified without a new consideration to support it.” And continuing, it was further said: “In the case of a known or conceded forgery, we ’are unable to discover any principle upon which a subsequent promise by the person whose name was forged can be held binding, in the absence of an estoppel in pais, or without' a new consideration for the promise.” Appellant does not contend that the facts pleaded show a ratification, but that what appellee did and said about the note estops him .from now pleading non est factum. We can not understand why one who sees and knows that his name has been forged to a note may not, by his conduct, be estopped from pleading forgery. It is settled by many well considered cases that while a person whose name has been forged may be estopped by his admissions, upon which others may have changed their relations, from pleading the truth of the matter to their detriment, the act from which the crime springs cannot upon considerations of public policy be ratified without a new consideration to support it. Henry v. Heeb, 114 Ind. 275; Lewis v. Hodapp, 14 Ind. App. 111; Shisler v. Vandike, 92 Pa. St. 447, 37 Am. Rep. 702;
Appellant undoubtedly, under the facts, suffered a change in his relations, by refraining from steps which otherwise might, and probably would, have secured him in his rights as against the maker of the note. As to what is required to constitute a change of relations may be easily determined from authorities. Thus, in Purviance, Adm., v. Jones, 120 Ind. 162, it was held that where one is induced to forego his purpose to secure his money before the statute of limitations has barred his claim, by the assurance of the debtor that a note has been signed and delivered to a bank for his benefit, he may, upon the death of the debtor with the note still in his possession, be entitled to compel a delivery, or require it to be treated in an equitable suit as having been delivered as represented. In discussing the question, Mitchell, J., on page 165, said: “It may be that the evidence was such as to have justified a finding that the note had been delivered to the bank for the plaintiff’s benefit; but the fact was not so found. The intestate, having received the plaintiff’s money, may have induced him to forego any effort to enforce collection, upon the assurance that a note had been left with the bank, for the- amount of the debt, for his benefit. If the plaintiff rested upon that assurance until the statute of limitations had barred the debt, the estate may now be estopped to say that the note was not delivered, as against one who relied upon the statement and who would now suffer actual pecuniary loss if the note, .actually signed, was not treated as having been delivered according to the representations made and relied upon.”
In Leather Manufacturers Bank v. Morgan, 117 U. S.
The Supreme Court of Texas has stated the rule as follows: “It has been held by this court that when one party has been prevented or induced by the conduct and representations of another from taking prompt action for the collection of his debt, that this is such a change in his position for the worse, as to meet the requirement of the law in order to create an estoppel,” citing as authority, Schwarz v. National Bank, 67 Tex. 217, 2 S. W. 865.
Herman on Estoppel, Vol. 2, p. 906, says: “It is not necessary that a party should act affirmatively upon a declaration to create an estoppel. If he had acted not in reliance upon it, but has means in his power to retrieve his position, and, relying upon the statement and in consequence of it he refrains from using these means, the estoppel will be enforced for his benefit.”
In Casco Bank v. Keene, 53 Me. 103, arrest is named as* one of the means of obtaining security which the plaintiff' had not availed himself of, by the conduct and declaration of his adversary.
In Knights v. Wiffen, L. R. 5, Q. B. 660, it was held that it need not appear that any benefit would result from the attempt to secure payment, but that the injured party had the right to make the attempt; and, losing the exercise of the right, by his reliance upon the declaration, the declarant was estopped.
In Continental Nat. Bank v. National Bank of the Commonwealth, 50 N. Y. 575, the plaintiff held a note purporting to have been forged. Upon hearing that the same was forged, plaintiff asked defendant about it, and, after looking at the note, admitted the signature to be genuine. The plaintiff relied upon such statement, and refrained from
By the conduct and representations of the appellee, he either adopted the signature, knowing it to be a forgery, or, by his silence and concealment, induced appellant to rely
In the Massachusetts case, Bank v. Buffinton, 97 Mass. 498, the court said: “The injury, which permitting him to deny the truth of his representation would occasion to the plaintiffs, is the loss of a good and valid indorser upon the notes, which, so far as he is concerned, is the liability for their full amount. If the action were for deceit in making a false representation, the rule of damages would be found by ascertaining, as the defendant asks should be done in this case, in how much worse condition the plaintiffs had been put by reason of the deceit. But the plaintiffs are not in that position. They had some notps of doubtful value. They do not ask to be compensated for having discovered this fact a few weeks later than they might have done, if they had not trusted to the defendant’s statement, which perhaps occasioned them little injury; but they say, and the finding of the jury entitles them to say, that in consideration of their trusting the defendant’s assurances, by his procurement, and thereby exposing themselves to the injury which such delay might occasion, which is a sufficient
In the case of Forsyth v. Day, 46 Me. 176, it was held that if a forged note is presented to the alleged maker, and he deceived the holder by language and acts calculated to^ induce reasonable belief that the note was genuine, he will be estopped from denying his signature if the holder, acting upon the belief, has been injured. This case is parallel, in all of its essential features, to the one before us. Here appellee was shown the note with what purported to be his own signature; he examined it; he told the holder that he did not have ready money at that time to take up the note; that he would see him again in a short time, and fixed the place and time of the meeting; he again saw the note; agreed to see Weber, and see what could be done; he must have known that his signature to the note was forged, and yet he concealed the fact of the forgery, to the injury of appellant, in that he was lulled into silence and inaction, and did not take the steps necessary to preserve his rights, and secure the payment of the money, which he had loaned Weber, and which the averments of the complaint say he could and would have done. And in line with the doctrine ■ last announced it was held in Merrill v. Tyler, Seld. Notes 83, that language of a person whose name had been forged to a note, which induced a holder to advance more money upon it, estops the party purporting to be the maker from denying his signature, in so far as it concerns the money advanced on the faith and reliance of his word. There is a long line of cases holding that mere silence of the person whose name has been forged, when the instrument purporting to bear his signature is shown him, will not work an estoppel, unless the holder has. been damaged thereby. Corser v. Paul, 41
The doctrine of estoppel will apply when the party sought to be estopped has stood by and remained silent, when it was his duty to speak. This is one of the essential elements of estoppel. Thus in Anderson v. Hubble, 93 Ind. 570, 47 Am. Rep. 394, the court at page 573 said: “The term ‘standing by’ so often used in the books and reports in discussing cases of estoppel, does not mean actual presence or actual participation in the transaction, but it means a silence where there is knowledge and a duty to make a disclosure.” It has been held that silence, when it is the duty of the party to speak, is equivalent to concealment. Studdard v. Lemmond, 48 Ga. 100; Cady v. Owen, 34 Vt. 598; Markland v. Kimmel, 87 Ind. 560; Wheeler v. New Brunswick R. Co., 115 U. S. 29; Jeneson v. Jeneson, 66 Ill. 259; Griffin v. Nichols, 51 Mich. 575, 17 N. W. 63. And in Gatling v. Rodman, 6 Ind. 289, it was held, that the term “standing-by” does not mean or impart an actual presence, but implies knowledge under such circumstances as to render it the duty of the possessor of the particular knowledge to^ communicate. See, also, State v. Holloway, 8 Blackf. 45; Ellis v. Diddy, 1 Ind. 561. In Richardson v. Chickering, 41 N. H. 380, the meaning of the phrase “standing by”, as defined in Gatling v. Rodman, supra, is expressly approved, and favorably commented upon. Herman on Estoppel, p. 1131, section 1007, lays down the following rule: “Where a party sees an obligation, with his name signed to it without his authority and consent, yet tells the
Prom the many authorities we have cited, and upon elementary principles as established by the text-writers, we may deduce the wholesome rule, that where, by the conduct or representations of one, another is induced to act, or to refrain from acting, and injury results to him, the party making the representations is thereafter estopped from denying the truth of such representations. Hence, when appellee, by his representations and conduct, led appellant to believe that the note in suit was genuine, and resting in that belief he was induced to forego suing Weber, as for money'had and received, or to take such other steps as might be necessary to secure to him the payment of the money loaned, and he was induced to leave his home for a sojourn in Europe for several months, and on his return to-find that Weber was dead, and his estate dissipated; and the further fact that if appellee had informed him that his name had been forged to the note he could have secured himself, — these facts, and such conduct, which are well pleaded, are sufficient to estop appellee from now asserting that the note as to him is a forgery. Each paragraph of the complaint states a good cause of action, and the court erred in sustaining the demur
Rehearing
On Petition for Behearing.
Wiley, J. — Appellee has filed a petition for a rehearing" and, in support of it, has furnished us with an elaborate and able brief. As the record presented but one question, the error complained of was in holding that the second, third, and fourth paragraphs of complaint were each sufficient to withstand a demurrer for want of facts, as was held in the original opinion. Upon a reexamination of the several paragraphs of complaint, and the authorities, it is the opinion of the majority of the court, that we were in error in holding the second and third paragraphs good. The majority, however, adhere to the conclusion reached in the original opinion as to the fourth paragraph of complaint. The writer is still of the opinion that the second and third paragraphs are good, but, for the reasons here stated, the original opinion is modified, and the court below is directed to overrule appellee’s demurrer to the fourth paragraph of amended complaint.
The petition for a rehearing is therefore overruled.