Coouey, J.
The circuit judge was clearly in error in treating this as a case of novation. To render it such, Bernard L. Meister must have been liable to Bosa Meister for the rent, which is sued for, aud in consideration of such liability, and by her order, or with her consent, and in discharge of her obligation, must have promised to pay the same to Birney, the lessor. But the facts negative any liability to her for the month for which suit is brought; and moreover she is not in any manner connected with the promise to Birney, or shown by Bimey's consent to have been discharged. There was consequently no novation.
But the judgment may possibly be right, even though the wrong reason was assigned for it. Two grounds are suggested on which it is supposed it may be supported. The first is, that the lessee, having had her goods attached, so that the remedy of the plaintiff (below) against her became of doubtful value, the promise of defendant (below) to pay the rent if the plaintiff would proceed to make the alterations in the building which had been stipulated for, was supported as a contract by a sufficient consideration when those alterations were made. The difficulty with this. suggestion is, that the plaintiff in making the alterations had done nothing but what he agreed to do in consideration of Bosa Meister’s promise to j>ay the rent; nothing but what he was legally bound to do. He had relied upon the responsibility of his lessee in leasing to her, and he does not appear to have attached any special conditions to the *439lease. He coulcl not refuse to make the alterations in consequence of the lessee’s goods-having been attached; he lost no remedy against her in consequence of defendant’s promise, and he could not have protected defendant in the possession when the lessee demanded it from him after the expiration of the month for which defendant was lessee. So long as he occupied, the defendant was legally bound to pay rent; but when he surrendered possession on a legal demand for it by the lessee, it is difficult to discover any consideration for his promise to pay more. Had this been the case of any controversy between the parties which they had seen fit to settle by mutual arrangement, we should not be inclined to inquire into the reasonableness of their respective claims ,* but this is not such a case. Neither does it resemble Moore v. Detroit Locomotive Works,14 Mich., 266" court="Mich." date_filed="1866-05-01" href="https://app.midpage.ai/document/moore-v-detroit-locomotive-works-6633595?utm_source=webapp" opinion_id="6633595">14 Mich., 266, where the court declined to consider a party’s claim to damages for the non-delivery of a chattel in due season, after he had accepted delivery on an understanding that no such claim should be made. To refuse to open a controversy which the parties, induced by no fraud and laboring under no mistake, have agreed to consider closed, is obviously a very different matter from holding a party bound to do affirmative acts in the future when his promise to do so is without legal consideration.
The second ground suggested is, that the defendant, having attorned to the plaintiff under a statement that he was assignee of the term, and having procured the alterations to be made by the lessor in reliance upon such statement, should be held estopped afterwards from disputing its truth. But there can be no estoppel unless the plaintiff w'as induced to take some action- in reliance upon the statement which he was not legally bound to take, which otherwise he would not have taken, and which will result to his detriment if the statement upon which he relied is allowed *440to be disproved. Making tbe alterations is not such action, if legally be was bound to make them, and presumably would have done so, because thus bound. We think, however, the subsequent action may be held to bind the defendant. Although he surrendered possession to Rosa Meister after his month was up, he did not inform the plaintiff of that fact, and we are not apprised by this record that plaintiff was notified of the surrender before this suit was brought. The construction we put upon the judge’s finding is that the plaintiff, when he brought this suit, believed, and relied upon, the defendant’s averment that he owned the term, and supposed him in possession, and to be in default in the payment of rent which it belonged to him to pay. If such was the fact; if the plaintiff was induced to incur the expense of this litigation in reliance upon a promise to pay, which was apparently legal and valid, and upon a statement of the defendant establishing such liability, which, though not true, he had reason to believe to be so, and to rely upon, we think the defendant cannot be permitted in this suit to deny the truth of such statement, and thereby not only evade his promise, but impose upon the plaintiff the expense of the suit. Expenditures in litigation may as reasonably constitute the basis of an estoppel as any other expenditures; and in this case it is just and .equitable that they be held to do so.
The judgment will therefore be affirmed, with costs.
The other Justices concurred.