102 Kan. 822 | Kan. | 1918
The opinion of the court was delivered by
A road was ordered opened across the land of R. I. McQuiddy, who presented his claim for damages and was allowed $600. On October 30, 1915, the board of county commissioners ordered a warrant to be drawn and issued to him for this amount. The petition set out the warrant, and alleged that when it was drawn there-was sufficient money in the treasury to pay, but that before the action was begun he demanded payment, which was refused. The board answered by general denial, admitted the execution of the warrant, and alleged that it was held by the clerk to be delivered to the party legally entitled thereto. Further, that about December 16, 1915, McQuiddy sold the property and executed a general warranty deed therefor, of which fact the board had no knowledge until sometime after the execution of the warrant and until the grantee appeared and demanded that it be delivered to him. The board further alleged its clerk communicated with McQuiddy, advising him of the claim of his grantee, whereupon McQuiddy authorized the board to ascertain and decide who was entitled to the warrant and dispose of it accordingly, setting out a copy of his letter in which he said:
“After due deliberation, I have concluded to submit the question of ownership to the $600.00, awarded me for damages. . . . after a fair and true statement of all the essential facts I desire the said honorable board to decide who should have the money and so dispose of it.”
Then followed a statement as to the price and profit on the sale, and the expression,
“I feel sure that when the facts are'known by) you, that no better tribunal can be found to decide our relative rights than your Honorable Body.”
The plaintiffs contend that the county board was the proper tribunal to establish the road and determine to whom the damages were due; that this determination was in favor of the decedent; and that,
“The board had no power to review and revise that decision and award or to sit in judgment in a controversy between rival claimants of a fund in its possession.”
The board, Duvall not having been made a party as requested, contends that it is protected in its action by the direction in the McQuiddy letter; that having thus directed he could not repudiate his action, and that he is estopped so to do. It is said that,
“What he did, was voluntary on his part — not even suggested by the Commissioners; having'on his own motion voluntarily waived his right to demand payment, surely must be bound by his selection of methods.”
We have examined the record and the briefs, as well as the reply brief, and to this complexion must it come at last: When the warrant was drawn McQuiddy was entitled to it; before this suit was brought he had sold the land to Duvall, who appeared before the board and claimed that the warrant should be delivered to him. On receiving this information from the board, McQuiddy recognized that there was a question between him and Duvall as to the ownership of the warrant and substantially requested the board to ascertain the facts and decide accordingly, making it a sort of referee or arbiter to investigate and determine the rights of the grantor and grantee. It appears that the board did exactly what he suggested, and decided in favor of the other party. There is no showing or claim that the board did not ascertain the real facts, or-that it did not act in good faith, or do exactly what the grantor
The doctrine of estoppel requires consistency of conduct. (Powers v. Scharling, 76 Kan. 855, 859, 92 Pac. 1099; Stark v. Meriwether, 99 Kan. 650, 657, 163 Pac. 152.)
“Estoppel arises when one by his conduct so misleads another, that the former is not permitted, or, as we say, is estopped from asserting a right which he might otherwise assert. In theory, the person estopped still has the right but cannot assert it.” (14 M. A. L. 174.)
“The doctrine of estoppel is frequently applied to .transactions in which it is found that it would be unconscionable to permit a person to maintain a position inconsistent with one in which he has acquiesced or of which he has accepted any benefit.” (10 R. C. L. 694, § 22.)
“An estoppel may be used as a defense against a party who is thus precluded from [by] his act or statement from maintaining his action; or it may be used by the plaintiff to prevent or avoid a defense which is open to a similar objection.” (1 Herman on Estoppel and Res Judicata, § 19.)
The order overruling the motion for judgment on the pleadings is affirmed, and the cause is remanded for further proceedings.