171 Wis. 109 | Wis. | 1920
Lead Opinion
On the plea in abatement there was a substantial issue of fact raised as to whether there was a definite meeting of the minds of the parties as to the subject matter of the proposed arbitration. The language used in the correspondence between the parties did not definitely specify such points and it was therefore proper to receive oral testimony of the surrounding circumstances in order to make such matters definite and certain, if possible. Upon such evidence the court might properly find that that which defendant’s' counsel had in mind as being intended to be covered and included by the arbitration was not the same thing as that which was within the contemplation of plaintiffs counsel, and, having found in favor of the defendant on such issue, we see no ground now for disturbing such judgment.
No question is raised but that under the assignment as executed by the Northwestern Concrete Company to the plaintiff and under the provisions of sec. 2606, Stats., the-defendant could have successfully interposed as a complete defense to this action by the plaintiff the setoff or counterclaim arising by réason of the' breach of the guaranty to defendant by the Northwestern.Concrete Company as found by the civil court, except and unless by its letter of December 24, 1915, set forth in the statement of facts above, it is prevented from now asserting such defense.
It is contended by appellant that the letter of December 24th contains no promise to pay the amount of $1,703.50 mentioned therein, and went no further than to acknowledge* the correctness of the amount stated of the unpaid account of the Northwestern Concrete Company with the
The defendant was under no legal obligation to make any statement whatsoever with reference to the amount due from defendant to the Northwestern Concrete Company or to make any statement concerning the same. Having elected, however, to do so, as embodied in its letter of December 24th, and having therein undertaken to make a positive statement of its accepting the assignment subject to certain possible deductions that might arise by reason of the filing of liens by any materialmen for the work, and that unless deductions were to be made in accordance with such exception there "would be a definite sum due on the following 1st of October, it must be held to have .thereby, by implication, excluded its right or intention to assert any other possible deduction from such account, and to have given an express recognition of a sum then payable except for the certain contingencies therein mentioned, and this case, therefore, is squarefy within the holding in Batavian Bank v. M., St. P. & S. S. M. R. Co. 123 Wis. 389, 101 N. W. 687.
As found by the court, the plaintiff, in reliance upon the acceptance ‘of such assignment and upon such assignment, extended the time for the payment of the then existing obligations of the Northwestern Concrete Company. Having so acted, there was sufficient in such a situation to bind the defendant to the statements in its letter of December 24th by way of estoppel.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). I regard the result-in this case as exceedingly harsh and one to be avoided unless made imperative upon the plainest considerations. As the result of a courteous, good-faith communication made by defendant to the bank it has been deprived of a valuable right, and this, it seems to me, without consideration moving to it or injury resulting to any one."
The Concrete Company had been indebted to the bank for a long time. The bank had exerted most strenuous efforts to secure a reduction of the indebtedness. When it had been reduced to $3,500 it took the assignment here in question, which represented the very last available asset of the Concrete Company, as satisfactorily appears from the record in this case. Having secured the assignment, it communicated the facts to the Realty Company. The letter of Mr. Greene, representing the Realty Company, set forth in the statement of facts, followed. Thereafter an extension of time on the indebtedness was granted, and it is said three indorsers of the note of the Concrete^ Company were released. As I understand the majority opinion it is held that, by reason of the extension of the time and the releasing of the indorsers, the Realty Company is now estopped to deny that the amount mentioned in the letter of Mr. Greene is due upon the account. To my mind estoppel does not arise upon these facts. Two essential elements are lacking: (1) the representation as to the amount due upon the account was not made with any thought, much less an intent, that it should be relied upon by the bank in its future conduct or dealing with the Concrete Company. This is an essential element of an equitable estoppel. 16 Cyc. 726; Norton v. Kearney, 10 Wis. 443. (2) The bank did not act in reliance upon this representation to its injury. True, it extended the time and released three sureties. But the evidence is conclusive to my mind that it lost nothing by either operation. It had everything that the principal debtor possessed. The Concrete Company went into bankruptcy
This result is also to be regretted from the standpoint of public policy. The only safe course that a debtor can pursue is to decline to give an assignee of the indebtedness any information whatever concerning the status of the account. His courtesies in such respect are likely to react upon him in the form of an estoppel and deprive him of the defenses which sec. 2606, Stats., reserves to him.
The case of Batavian Bank v. M., St. P. & S. S. M. R. Co. 123 Wis. 389, 101 N. W. 687, certainly went far enough in implying a promise to pay from a mere business courtesy, and it is to be hoped that this case marks the limit.
