5 Indian Terr. 59 | Ct. App. Ind. Terr. | 1904
Appellants make assignment of errors as follows: “First. That the defendants herein are estopped from claiming the value of the improvements conveyed by co-tract dated March 4, 1899, to be less than the amount stated in said contract. Second. That the defendants are estopped from attempting to show at this time that plaintiff had not properly worked said mine, and had not worked it in a first-class shape, under his lease contracts of June 25, 1897, and June 22, 1898, and from claiming damages against plaintiff for his failure to work said mine in first-class shape under his contracts of June 25, 1897, and June 22, 1898. Third. The court finds that the plaintiff is entitled to recover of and from the defendants the sum of four hundred fifty-two dollars and fifty cents (452.50).” Appellants, in support of their contention, cite Pomeroy on Equitable Estoppel, as follows: “Equitable estoppel is the effect of the voluntary conduct of a party, -vyhereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property,
The proof shows that appellants took possession of the mine 'under the contract of sale on March 4, 1899, and that on
Counsel for appellants contend, also, that the law of estoppel, in order to be successfully invoked, must be pleaded. Herman, in his work on Estoppel & Res Judicata, §§ 1296, 1303, 1305, says:
' ' 1 “Sec. 1296.t In regard to estoppels in pais or equitable estoppels, there is a remarkable difference between this and other lands of estoppels; that is, that estoppels in pais may be relied on in evidence as conclusive, without being specially pleaded. * * *
*67 “Sec. 1303. * * * For estoppels in pais are not pleaded, but are, in general, given in evidence, and will prima facie operate as effectually to estop the party under the direction of the court.
“See. 1305. Equitable estoppels growing out of'acts in pais constitute an exception to the general rule, and are equally conclusive, whether pleaded or given in evidence. This is peculiarly true of estoppels in pais, which generally arise out of a great variety of circumstances, that cannot well be set forth with the precision and brevity required for good pleading, except where otherwise provided for by statute.”
Counsel for appellants has not urged upon the court any further argument in support of his third assignment of error.
There being no error in the record, we are of the opinion that the judgment of the court below should be, and it is, affirmed.