Brigham Young Trust Co. v. Wagener

• Decision Date: 14 June 1895
• Docket Number: 546
• Citation: 12 Utah 1,40 P. 764
• Court: Utah Supreme Court
• Parties: BRIGHAM YOUNG TRUST COMPANY, A CORPORATION, RESPONDENT, v. HENRY WAGENER, APPELLANT. [1]

40 P. 764

12 Utah 1

BRIGHAM YOUNG TRUST COMPANY, A CORPORATION, RESPONDENT, v. HENRY WAGENER, APPELLANT. ^[1]

No. 546

Supreme Court of Utah

June 14, 1895

APPEAL from the District Court of the Third Judicial District. Hon S. A. Merritt, Judge.

Action by the Brigham Young Trust Company against Henry Wagener for rent. From a judgment for plaintiff, and from an order overruling his motion for a new trial, defendant appeals.

Affirmed.

James A. Williams, for appellant.

This case turns upon the doctrine of equitable estoppel or estoppel in pais arising from conduct and from election. On the 1st day of May, 1892, defendant was in default in the payment of rent in the sum of $ 480. On the 9th day of May he tendered that amount, which paid the rent up to June 1, 1892. The agent of the company refused the money and returned the check and informed defendant that the lease had been forfeited and that they had taken possession of the property. The property was vacant during said term, and a mere entry upon it would be sufficient to create a forfeiture without actually keeping a person in charge. On the 3d day of May the board of directors of the company passed a resolution agreeing to accept the rent on defendants "agreeing not to assign or sub-let without our consent, nor to rent for immoral purposes, saloon purposes, and to pay the rent at the company's office. Carried." The secretary wrote defendant a letter stating the effect of the resolution adopted. On May 9, defendant sent a check for $ 480 in payment of the rent, thereby, in effect, informing the company that he would not submit to a new lease or new conditions. Defendant's check was returned by the treasurer on May 10. In this letter the treasurer said "The company would accept his rent on his forfeited lease on certain conditions."

Spencer Clawson, the treasurer and the only witness for the company said on cross-examination: "They were new conditions we were to have him reinstated in his lease." "Q. In other words, you considered the old lease forfeited, but if he would comply with the new conditions you would allow him to occupy the property? A. Yes, sir; that is about it. Q. The Brigham Young Trust Company was contemplating building several blocks over and about town on their several properties in the spring of 1892? A. Yes, sir. Q. And you did build on some of the properties--blocks? A. Yes, sir." And further on Clawson says: "We refused to receive the money when he tendered it, for the lease was forfeited until he complied with the resolution you have read." "Q. You would not accept the rent though under the old lease when he offered it to you? A. No, sir; because he had forfeited the original lease. We were willing to reinstate him on the condition named. We would not have asked any rent if he had complied with the conditions. In other words, we would rather lose the rent than not to have had a forfeiture of the lease. We wanted the property back; it was a fifteen-year lease * * * he was to comply with the new conditions and pay the back rent also." After the return of the defendant's check on May 10, he having refused by the tender of the check to agree to any new lease or new conditions, and having been told by the officers of the company that the lease had been forfeited and possession taken, he considered that he had lost the property, which had cost him $ 1,500, without having derived any benefit therefrom. He did not hear anything more about the rent money or the rent for about 6 months, when the company sues him, not only for the $ 480 tendered, but also for $ 300, that they claimed had accrued between May, the date of the tender, and the following November.

Appellant contends: First. That respondent's claim for rent after tender and the refusal, and after the company had made him believe he had lost the property, is outrageous and without any show of right whatever. Second. That the company's claim for the $ 480 that was tendered and refused cannot now be enforced for two reasons: (1) Because at the date of the tender, the company, as landlord, had a right to insist upon a forfeiture and refuse the rent or to waive a forfeiture and accept the rent, but could not do both. It had to make an election. It elected to insist upon the forfeiture and that election is final. "Where, by reason of a breach of condition a lease becomes forfeited, the lessor is entitled to recover possession; he waives that right by the acceptance of rent, he cannot accept the rent and at the same time claim a forfeture of the lease." 2 Herman on Est. § 1046. (2) That the tender of the check was "an offer in writing to pay a particular sum of money, and was equivalent to an actual production and tender of the money," under 2 Comp. Laws 1888, § 3964. Hyams v. Bamberger, 10 Utah 3; S. C. 36 P. 202; 25 Enc. of Law, 904, and sq. esp 916-17.

An estoppel in pais in this case arises in two ways: First--By acts and conduct. Second--By election.

First by acts and conduct: The return of the check, the letters of the secretary and treasurer, the resolution of the board of directors, the declarations of the officers of the company at the time to Wagener that the lease was forfeited for non-payment of rent in advance, and that possession had been taken, were acts and conduct such as to make, and were intended to make, and did make Wagener believe he had forfeited the lease and lost all right to the premises. Wagener did believe this and acted accordingly, to his prejudice. Is the company now to be heard to say that it did not intend to forfeit the lease; that notwithstanding these declarations of its agents, the letters, the resolution, the return of the check and its conduct generally, that it really had not taken possession as a matter of fact of the premises in question, and really did not intend to create a forfeiture? Is the company, after all this, to be allowed "to blow hot and cold?" "One cannot blow hot and cold. This is a trite expression of the maxim, allegans contraria non est audiendus. This fundamental is of wide application in the law of equitable estoppel. He cannot treat a contract as subsisting and afterwards avoid it." 2 Herman on Est. § 1039. "He cannot treat a contract as subsisting and afterwards avoid it." Is it not as true to say: "He cannot treat-a contract as no longer subsisting and afterwards enforce it," especially if the other party has changed his position for worse by also treating the contract as no longer subsisting?

In Stowe v. United States, 86 U.S. 13, Bk. 22, L.Ed. 144, in a note, we find the principle laid down as follows: "Party who has made another believe a certain state of facts to be true either by his silence, declarations or acts, is estopped from denying its truth, where such course has intended to and did influence the conduct of the other," citing a large number of authorities. "If one person is induced to do an act prejudicial to himself, in consequence of the acts or declarations of another, on which he had a right to rely, equity will enjoin the latter from asserting his legal rights against the tenor of suct acts or declarations." Branson v. White, 17 Wall. 32, Bk. 21, L.Ed. 566. "He who, by his language or conduct, leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted." Dickerson v. Colgrove, 100 U.S. 578, Bk. 25, L.Ed. 618. "It is a general principle both at law and in equity that when a party, by his declaration or his conduct has induced another to act in a particular manner which he would not otherwise have done, such party will not afterward be permitted to set up a claim inconsistent with such declaration or conduct if such claim will work an injury to the other party or those claiming under him." Banks v. American Track Soc., 4 Sandf. Ch. 438.

Second by election: The conduct of the treasurer showed that as a shrewd business man he had clearly in his mind the doctrine of equitable estoppel. He grasped the doctrine better even than the court did at the trial or the attorney for the company. When Wagener sent him the check for $ 480 he returned it and in his evidence he says: "In other words, we would rather lose the rent than not to have had forfeiture of the lease; we wanted the property back." He was right. He knew that he could not insist upon a forfeiture and also accept the rent money. He knew that by accepting the rent money that it would put Wagener in good standing with his lease; that it would be a waiver of the forfeiture. He not only shows this by his conduct at the time of returning the check, etc., but also admits it on the witness stand. "Acceptance of rent is a waiver of forfeiture in a case where a lease provides for re-entry in the event of a breach of the obligation, where the lessor had knowledge that the condition was broken at the time he accepted it." Silva v. Campbell, 24 P. 316. "Where, by reason of a breach of condition, a lease becomes forfeited, and the lessor is entitled to recover possession, he waives that right by the acceptance of rent. He cannot accept the rent and at the same time claim a forfeiture of the lease." 2 Herman, supra. "The lessor is estopped by the receipt of rent. * * * He cannot at the same time claim that the lease is void for one purpose and valid for another." 2 Herman on Est. § 1048. "Acceptance of rent accruing after knowledge of a breach of condition by the tenant is a waiver of the forfeiture. Gomber v. Hackett, 6 Wis. 323; 12 Enc. of Law, 758m note. The company knew of the breach of condition, and knew that by accepting the check it waived the right to insist upon a forfeiture. "Subsequent receipt of rent waives a forfeiture. Camp v. Pulver, 5 Barb. (N.Y.) 91; Coon v. Brickett, 2 N.H....