Dayhood v. Neely

• Decision Date: 31 March 1924
• Docket Number: 23995
• Citation: 99 So. 440,135 Miss. 14
• Court: Mississippi Supreme Court
• Parties: DAYHOOD v. NEELY et al

99 So. 440

135 Miss. 14

DAYHOOD v. NEELY et al

No. 23995

Supreme Court of Mississippi

March 31, 1924

Division A

(Division A.) January 1, 1920

ESTOPPEL. Representation of maker to prospective purchaser that he will pay note precludes defense of illegal consideration.

Where the maker of a note promises a prospective purchaser to pay the same, or represents to him that the note is valid and there is no defense thereto, he is estopped to resist payment in an action by such purchaser, who has taken the note in reliance on such representations, and he will be precluded from setting up as a defense that the consideration of the note was a gambling debt and therefore illegal.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Sunflower County, HON. S. F. DAVIS Judge.

Action by Sam Dayhood against Dick Neely and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

B. B. Allen, for appellant.

Appellee Neely is estopped by his misrepresentation in this case to set up a defense to this suit. It is one of the oldest and best settled principles of the common law that where one party by his conduct has induced another to do a thing to his injury, the party whose conduct has thus induced this action cannot be heard to deny the truth of his former statements and representations, this being regarded as a fraud upon the rights of the injured party. And this court has held, in the case of Smith v. State, 107 Miss. 468, 65 So. 564, that fraud involves "a breach of duty, trust, or confidence, and includes all acts, omissions, or concealments by which another is injured, or an undue and unconscientious advantage taken." "An estoppel as defined by Lord COKE, is in effect a man's act or acceptance which stops or closes his mouth to allege or prove the truth, and is enforced on the grounds of public policy and good faith. " Banks v. Eldridge, 84 So. 430, 17 Ala.App. 235.

By a long list of well-considered cases, this court has upheld the doctrine of estoppel in cases similar to the one at bar, and in no instance have we found where there was ever a dissenting opinion. These decisions and our contentions here are in line with the general trend of the law everywhere. 21 Corpus Juris, 1143, sec. 146; 3 R. C. L. 1107, sections 323, 324; 10, R. C. L. 808, section 116; Montgomery v. Dillingham, 3 S. & M. 467; Ayres v. Mitchell, 3 S. & M. 683; Land v. Lacoste, 5 How. 471; Parham v. Randolph, 4 How. 435; Hamer v. Johnston, S. & M. Ch. 563, is a case on all-fours with the one at bar.

So we see from the above that our replication of estoppel is good, and that the court below erred in sustaining a demurrer to it. We are backed in our contention by several well-considered and well-reasoned cases, and by the common law and holding of the courts of the other states. While it may be true that the note in this case was actually given for a gambling debt, the appellee by his conduct has precluded himself from asserting it because to do so would permit him to change his story to the detriment of an innocent person who has relied upon it as true; the appellee cannot even show the truth to be different from his first story to the appellant; appellee is estopped to set up or avail himself of it, or to deny that the note is good and valid and binding on him.

Floyd & Easterling, for appellee.

The precise question presented is whether or not the appellee is estopped by virtue of his promise to pay to show that the note given by him to Shofner, and by Shofner transferred to the plaintiff, Dayhood, was upon consideration of a gambling debt and null and void.

It is our contention that under the statute the note given upon consideration of money lost at gaming was null and void, and that no subsequent development could breathe the breath of life into that which was not. A void thing is no thing. See section 2300, Code 1906, section 1910, Hemingway's Code. We contend that the principle of the estoppel contended for by appellant does not apply. For it is obvious that to allow recovery on void instruments would lead to circumvention of the statute, and a nullifying of the public policy of the state. Elkin-Henson Grain Company v. White, 98 So. 531, is conclusive of the question here.

Under the section on gaming heretofore quoted are noted cases which are equally conclusive. See Holman v. Ringo, 36 Miss. 69; Crawford v. Storms, 41 Miss. 540; Campbell v. New Orleans National Bank, 74 Miss. 526, 23 So. 25; Adams v. Rowan, 8 S. & M. 624; Lucas v. Waul, 12 S. & M. 157; Martin v. Terrell, 12 S. & M. 571; Smither v. Keys, 30 Miss. 179.

Now if the replication had averred that the plaintiff asked the defendant what was the consideration of the note, or had asked for what it was given and the defendant had misled the plaintiff or had concealed any fact or stated that it was not given for gambling, then there might have been some reason for the application of the doctrine of estoppel, but we submit if the facts had disclosed this kind of a case that suit still could not have been brought upon the note as such as was due in this case, but would have to have been brought in a suit in tort for fraud and deceit. The action of the court below in the light of the authority cited and the statute referred to, was preeminently correct.

Argued orally by B. B. Allen, for appellant.

OPINION

ANDERSON, J.

Appellant Sam Dayhood, sued appellees, Dick Neely and E. P. Shofner, to recover the principal and interest of a certain promissory note for six hundred ninety-five dollars, executed by appellee Neely and indorsed by appellee Shofner, of which promissory note appellant was the owner and holder in due course at the time he brought this suit. Appellee Neely pleaded in addition to the general issue that the note in question was void...