42 N.Y. 443 | NY | 1870
Lead Opinion
The note bears date February 17, 1853. The plaintiff was sworn on the trial, and the following is his evidence, so far as it is material here: "I had a conversation with defendant in the month of September, 1858; a short time before that I had received a line from defendant, asking me to pay the costs in the Nye matter; they were Abbott Moore's costs; they defended a suit for me; I came up to his office to see him; he was not there; I then went to his house and found him; I told him I came up to settle the matter of those costs, and offered to pay the balance of them after deducting this note; I told him the note would outlaw soon, and something must be done about it; that I had waited on him for most six years; he told me if the note did outlaw he would not plead the statute of limitations on it; that I might rest assured of it; I told him that I had waited on the settlement of matters nearly six years; I was pressing him to pay the note, and told him when he did I would pay the Nye matter; this was the only note I had against defendant at the time; defendant refused to apply the note in payment of the Nye costs, because, he said, the costs were Abbott Moore's, and the note was his individual matter; if defendant had not made this promise or agreement not to plead the statute I should not have let this note run more than six years without suing it; I should have sued it within six years after its maturity if it had not been for that agreement; I let the note outlaw because of defendant's agreement." The defendant was also sworn, and positively denied the agreement not to plead the statute, and yet, for the purpose of this appeal, the facts testified to by the plaintiff must be taken as true. The only question for us to consider is, *446 whether these facts were sufficient to save this note from the statute of limitations.
Prior to the Code, what took place between the parties in September, 1858, would have been sufficient to take the note out of the operation of the statute of limitations. It would only have been necessary for the plaintiff to show an unconditional acknowledgment of the existence of the debt; and this could have been shown by proof of a direct acknowledgment, or by proof of facts from which it could be properly inferred. (Angell on Lim., § 208, etc.; Dean v. Hewit, 5 Wend., 257; McCrea v.Purmort, 16 id., 460, 477; Henry v. Root,
The acknowledgment, then, proved in this case, would have been sufficient to take this note out of the statute of limitations, if it had not been for section 110 of the Code, which provides that "no acknowledgment or promise shall be sufficient evidence of a new or continuing contract whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby." The only effect of this section is to require that to be proved by writing which could before be proved by parol. (Hayden v. Williams, 7 Bing. R., 163.) Hence, if the plaintiff relied upon what the defendant said in September, 1858, as an acknowledgment to take the note out of the statute, he would fail simply because it was not in writing. If he relied upon what the defendant then said as an agreement not to plead the statute, he would fail, if for no other reason, because there was no consideration for the agreement. He did not agree with the defendant that he would wait and permit the note to outlaw. Neither could he rely upon what then took place as a waiver by the defendant of the statute of limitations, because there was no consideration to uphold the waiver. The defendant did not then have the right to plead the statute, and this was at most a mere promise to waive it. (Crawford v. Lockwood, 9 How., 547.) The only ground, therefore, the plaintiff has to stand on is, that the defendant is estopped by what he said from pleading and availing himself of the statute; and whether the doctrine of equitable estoppel inpais is applicable to a case of this kind, under the law as it now is, is the only question in this case remaining to be considered.
Now, what is an equitable estoppel in pais, as generally understood and applied in the courts? It is used to preclude a party from maintaining, by evidence, that which he has before expressly or tacitly denied, or disproving that which he has before expressly or tacitly admitted, when the other party has *448
acted upon the faith of the admission or denial in such a manner that he will be injured unless the same is held conclusive. It is said by Justice SELDEN, in Crawford v. Lockwood, "that it is essential to every estoppel in pais that it relate to some matter of fact which has been previously either admitted or denied by the party claimed to be estopped. An admission by a person as to the law, or as to the legal effect of his contract, is never held to estop him. It is also necessary that the fact should be one of which the party claiming the benefit of the estoppel was ignorant. The basis of an estoppel in pais is fraud. It is not, it is true, essential that there should have been an intention to deceive. But there must have been a confidence reposed, which would be betrayed to the injury of one party if the other is permitted to retract his admission or denial." In Knettle v. Newcomb (31 Barb., 169), Justice PRATT, speaking of estoppel in pais, says: "The defence is not available, for the reason that both sides were aware of all the facts." In Hutchins v. Hibbard (
I have cited these cases from a great many, simply to show the language used, with great uniformity, by the courts in reference to estoppels in pais. With the exception of a few cases, which I will soon notice, my attention has been called to cases only where this doctrine was applied to conclude parties who had expressly or impliedly admitted or denied certain facts; and to no cases where a party had only promised something for the future, when the facts were equally known to both parties. In this case the fact that the note would outlaw was equally known to both parties. The plaintiff *450 did not rely upon the statement of any fact made by the defendant, but he relied upon the promises of the defendant, which the latter saw fit to break. If a creditor should present his claim to his debtor, not knowing precisely when it fell due and when it would be outlawed, but believing that it was about to outlaw, and the debtor, professing to know when it fell due and when it would outlaw, should represent that it had a month longer to run, and request the creditor to delay, and the creditor should thereupon delay the month, when in fact the claim had but one week to run, the debtor would be concluded by the statement he had made, and would be estopped from claiming that the claim was outlawed before the expiration of the month. Here would be the representation of a fact upon which the creditor, not knowing the truth, relied. As another illustration of the rule, as I claim it to be: suppose I meet the maker of a note which I hold, and we both know that it is about to outlaw, and I request him to give a written acknowledgment, renewing it, and to leave it with my banker, and he promises to do so; I afterward see him, before the note is outlawed, and he says he has done so, and I, relying upon this, permit the statute to run. But it turns out that he did not leave the written acknowledgment. Here again would be the representation of a fact; and in a suit upon the note, the maker would be concluded by his representation, upon which I relied, and would be estopped from denying a written acknowledgment.
Our attention has been called to the cases where it has been held that a party may be prevented by estoppel from availing himself of the defence of usury. (Ferguson v. Hamilton, 35 Barb., 427; Chamberlain v. Townsend, 26 id., 611; TheMerchants' Bank of Brooklyn v. Townsend, 17 How. Pr., 569;Mason v. Anthony, 3 Keyes, 609.) In all these cases there was the representation of a fact, to wit, that there was no usury, to a party ignorant of the truth and who relied upon the representation. But suppose the representation had been made to a party who knew of the usury, or *451 suppose there had simply been a promise not to plead usury, would the courts have held that there was any estoppel?
In the cases of Crawford v. Lockwood (9 How. Pr., 547),Knettle v. Newcomb (31 Barb., 169), and same case (
The statute of frauds requires certain contracts to be in writing. Can a party be deprived of the benefit and protection of this statute by any parol waiver, agreement or estoppel? Suppose a seller of real estate should agree with the purchaser that it need not be reduced to writing, and that he would not plead the statute of frauds; would he be estopped, when sued upon the contract of sale, from setting up the statute as a defence? No case can be found asserting such a doctrine. Courts of equity, not courts of law, will *452 enforce the specific performance of parol contracts for the sale of lands in cases of part performance. (Story's Eq. Jur., § 759,et seq.) But this is not upon the doctrine of estoppel, but upon that of fraud. These courts have jurisdiction of frauds, and, under this acknowledged head of jurisdiction, they take jurisdiction of such cases and administer their equitable relief by compelling performance. If they proceeded upon the doctrine of estoppel, there would be no necessity for part performance, and they could afford relief in every case where the writing was omitted in reliance upon the declarations or promise of the other party, waiving or agreeing not to plead the statute; and if the doctrine of estoppel controlled such cases, payment or part payment would be just as effectual to uphold the estoppel as any other part performance; and courts of law, as well as courts of equity, would uphold such contracts, as the defendant would always come into court estopped from denying that the contract was in writing. I have no doubt that, if the buyer of land should have the contract drawn and left with his attorney for the seller to sign, and the latter should represent to him that he had signed it, and on the faith of this the buyer should pay the purchase money, the seller would be estopped from denying that he had signed it, and the contract could be enforced, certainly in equity, and I think in law.
A party may, undoubtedly, without trenching upon public policy, waive the defence of usury, or of the statute of frauds, or of the statute of limitations, by omitting to set up the defence when sued. And he may waive his statute exemption by turning out exempt property when the officer comes with the execution; but no case has occurred to me in which a party can, in advance, make a valid promise that a statute founded in public policy shall be inoperative.
There are a few cases which seem to be in conflict with the conclusion I have reached as to the statute of limitations. InWarren v. Walker (
I am therefore in favor of reversing the judgment of the General Term, and affirming that of the County Court, with costs.
Concurrence Opinion
Assume that the appellant's promise, agreement or statement, whichever you choose to call it, that he would not plead the statute of limitations, might have been regarded as an express promise to pay the debt, or as an acknowledgment of the debt as subsisting, from which a promise to pay might have been implied before the Code; or assuming that, had such promise, agreement or statement been in writing, it would have been sufficient evidence of a new or continuing contract, within section 110 of the Code; that the respondent cannot use the promise, agreement or statement as an estoppel, or by way of estoppel, is not a sequence of either assumption.
True, the promise could not be actually used both ways in the same case; but what I mean is, that it does not follow that it cannot be used or received as an estoppel, because, had it been in writing, it would, or might have been, sufficient evidence of a new or continuing contract, within section 110 of the Code.
But the promise was not in writing, and therefore could not be used by the respondent under section 110 of the Code; and the question is, whether it could be used by him by way of estoppel.
I think, clearly not. If it estops the appellant, what does it estop him from? Why, from effectually pleading the statute of limitations. Nothing more, or less, or other. Now, one may waive, or lay aside, the protection or benefit which his position gives him the right to claim under a statute; that is, one owing a usurious or outlawed debt may pay it, or he may, I assume, by his conduct or words estop himself from proving that the debt is outlawed, or is usurious; but *457 one cannot estop himself from pleading the statute of limitations, or the statute against usury or any other public statute. One may lay aside or waive the protection of a statute, but he cannot lay aside or suspend the statute; and to permit one to estop himself from pleading a statute, would in effect be permitting him to thwart or suspend the operation of the statute.
Blackstone says (3 Com., 308), that an estoppel may be a special plea in bar, "which happens where a man has done some act, or executed some deed, which estops or precludes him from averring anything to the contrary." That is, applying what Blackstone says to this case, the plaintiff and respondent might have pleaded in bar of the defendant's plea of the statute of limitations, that he had done some act or excuted some deed which estopped him from effectually pleading the statute; that is, from proving that the statute had attached.
One by his conduct, by act, or words, may estop himself from proving or showing that a different state of things, or of facts, existed than he misrepresented or induced another party to believe existed at the time of his misrepresentation or act.
The defendant's promise or statement in this case, which ever you call it, has none of the elements or features of an estoppel. It is a promise or agreement not to do a thing in the future. Call it a statement, and it cannot be tortured into being anact of estoppel, within the meaning of the doctrine of estoppel, or within any authoritative precedents of the application of that doctrine.
The defendant's promise or statement was in words, of course; but it would be absurd to call it a representation or statement of, or as to, any past or then present fact or state of things. There was no representation or deception as to any then existing state of things; indeed, no representation at all. No pretence on the part of the plaintiff of ignorance of any fact known to the defendant.
If the plaintiff has been deceived or injured, he has been deceived and injured by the defendant's pleading the statute *458 of limitations after promising not to do so; that is, by the breach of his promise or agreement; and every one who takes a promise for the payment of money, or to do or not do a certain thing, expecting the promise to be kept, is liable to be deceived and injured in the same way.
Will it be pretended, that a promise not to plead or set up usury, or infancy, or coverture, whether in the note evidencing the debt, or outside of it, would estop or preclude the promisor from effectually pleading and proving the usury, or infancy, or coverture? Nay, further, if the defendant is estopped by his promise not to plead or avail himself of the statute of limitations, why is not the giver of every note for a usurious loan estopped, by the note, from pleading and proving the usurious agreement? Certainly, it may be said, that the party making the loan and taking the note relied upon the promisor's keeping his promise and paying the note; and certainly the note implies a promise not to plead or take advantage of the law against usury.
The substance of all that has been said by me in this case, if not said by Judge SELDEN, was implied in, or follows from what he did say, in Crawford v. Lockwood (9 How. Pr. R., 550, 551); and whatever there be in the opinions in Gaylord v. Van Loan (15 Wend., 308), and The Utica Ins. Co. v. Bloodgood (4 Wend., 652), inconsistent with what was said by Judge SELDEN on this question of estoppel in Crawford v. Lockwood, should be regarded as not good law. (See also Kneettle v. Newcomb, 31 Barb., 169.)
The affirmance of the judgment in the last cited case (
The judgment of the Supreme Court, reversing the judgment of the County Court, should be reversed.
All concur for reversal. *459
Judgment of the General Term reversed, and that of the County Court affirmed.