Dreyfus v. Gage

• Decision Date: 28 March 1904
• Citation: 36 So. 248,84 Miss. 219
• Court: Mississippi Supreme Court
• Parties: LEONIDAS F. DREYFUS v. WILLIAM A. GAGE ET AL

36 So. 248

84 Miss. 219

LEONIDAS F. DREYFUS v. WILLIAM A. GAGE ET AL

Supreme Court of Mississippi

March 28, 1904

FROM the chancery court of Bolivar county. HON. A. MCC. KIMBROUGH Chancellor.

Dreyfus appellant, was complainant in the court below, and Gage and others, appellees, were defendants there. From a decree in defendants' favor the complainant appealed to the supreme court. The facts are stated in the opinion of the court. [For a decision of a former appeal in the same case, see Dreyfus v. Gage, 79 Miss. 403.]

Affirmed.

J. S Hicks, and Charles Scott, Woods & Scott, for appellant.

The waiver of Mrs. Hicklin is contained in a letter addressed to the tenant, stating that upon certain conditions the rent upon the Hicklin property will be waived. The party in favor of whom the rent will be waived is "any person" who will comply with the terms thereof, and the paper is certainly a conditional waiver--an inchoate waiver, which at any time may be made a valid and binding waiver, but which has no force and effect until the terms thereof are complied with.

What are the conditions which "any person" can take advantage of and thereby make the conditional waiver a binding contract between Mrs. Hicklin and himself?

(a) "Any person," "must aid you," "to the extent of $ 1,200."

(b) Such person must not only aid you to the extent of $ 1,200, but must in addition agree to aid you to make and gather a crop for this year (1899).

(c) This $ 1,200 must be advanced and aid given on "my plantation," not on any other plantation, but on "my plantation" in Bolivar county.

The parts of the above sentences in quotation marks are taken literally from the conditional waiver; the word "my" referring to Mrs. Hicklin, and the word "you" to W. D. Moore.

From the construction of the instrument it is plain that it was on condition of the "person who undertakes the business"--that is, advances you.

(a) To agree to aid W. D. Moore to make and gather a crop.

(b) That he must advance at least $ 1,200 for this purpose.

(c) That the advance must be made to be used on the Hicklin place alone.

The question between Gage & Company and Dreyfus is one of estoppel in pais, it not being contended that Dreyfus waived in writing or otherwise the rent claim.

The general law of estoppel may be stated to be "a preclusion of a person to assert a fact which has been admitted or determined under circumstances of solemnity, such as, by matter of record, or by deed, or by an act in pais inducing another to believe and act upon to his prejudice." 11 Am. & Eng. Ency. Law, 387.

Estoppel in pais are: (1) Misrepresentation; (2) Acquiescence and Silence.

The rule being that where A by words has represented, or by his silence when in good conscience he should speak out, intentionally or through culpable negligence, induces B to believe the existence of certain facts, and B has rightfully acted upon this belief, so that he will be prejudiced if A is permitted to deny the existence of such facts, then A is estopped from interposing a denial of such facts. 11 Am. & Eng. Ency. Law, 421.

The effect of estoppel is to put the party entitled to the benefit of the estoppel in the same position as if the thing represented were true. 11 Am. & Eng. Ency. Law, 423.

Fraud is an essential element of estoppel, and to establish estoppel the proof must be clear, and unequivocal, and must also be affirmative. 11 Am. & Eng. Ency. Law, 424; Roach v. Brannon, 57 Miss. 490.

The representation must be inconsistent with the evidence proposed to be introduced. 11 Am. & Eng. Ency. Law, 420.

Statements of opinion where facts are open to both parties will not act as an estoppel. 11 Am. & Eng. Ency. Law, 425.

In order to establish an estoppel knowledge of all the facts is necessary. Houston v. Witherspoon, 68 Miss. 190.

And so knowledge of the facts by the party setting up the estoppel will preclude him from setting up the estoppel. 11 Am. & Eng. Ency. Law, 434.

The party must act upon the representation, and not upon the advice, of another, or upon knowledge acquired from another. 11 Am. & Eng. Ency. Law, 434.

There must be damage to the party setting up the estoppel by reason of the false statements. 72 Miss. 809.

In short, to establish estoppel in pats there must be: First--An admission inconsistent with the evidence afterwards sought to be given. Second--Action by the other party upon such admission. Third--Injury to him by allowing the same to be disproved. Turnipseed v. Hudson, 50 Miss. 429.

To establish estoppel by conduct there must be: First--A concealment or misrepresentation of the material facts. Second--The representation must be made with the knowledge of the facts. Third--The party to whom it was made must have been ignorant of the truth of the matter. Fourth--It must be made with the intention that the other party shall act upon it. Fifth--The other party must be induced to act upon it. Turnipseed v. Hudson, 50 Miss. 429.

Moore & Clark, for appellee.

Dreyfus very fully understood the nature of the security demanded by Gage & Company. He used every effort in his power to induce Gage & Company to accept the business, urged upon them again the solvent credit they were extending when protected by this waiver rent, and never for one instant gave them or their attorneys the slightest intimation that he held the rent notes against this property, or that there would be any claim due him in preference to that of Gage & Company in the event they took this business.

By his own deposition he has stated clearly and distinctly that, having full knowledge of the fact that Gage & Company had demanded a waiver of the landlord's lien for rent, and that he further knew waiver had been submitted to them, which they did not and would not accept, but were demanding a further and more unconditional waiver, he deliberately concealed the fact that he had the rent notes in his possession. He thought it was essential to his own interest to say nothing about this. Silence, such as this, becomes a fraud and necessarily works an estoppel upon the party guilty of the fraud. Staton v. Bryant, 55 Miss. 261; Roach v. Brannon, 57 Miss. 490; Kelley v. Wagner, 61 Miss. 299; Houston v. Witherspoon, 68 Miss. 190; 11 Am. & Eng. Ency. Law (2d ed.), 421.

This cause was, on the former appeal, remanded to the lower court to be disposed of upon the merits, leaving, as we have above indicated, to the chancellor to pass upon the effect of the testimony and the estoppel by conduct, and all of the other mere questions of fact in this record. We do not believe that there is any ground to cavil at the decision rendered by the chancellor, since that decision was clearly right, but the doctrine is well established that in a case depending upon fact, where the evidence is conflicting and the mind cannot repose with confidence upon a conclusion in favor of either party, this court will not disturb a decision. Wilson v. Beauchamp, 50 Miss. 24; Valentine v. McGrath, 52 Miss. 112; Randel v. Yates, 48 Miss. 685; Harrington v. Allen, 48 Miss. 492; Apple v. Ganong, 47 Miss. 189; Davis v. Richardson, 45 Miss. 499; Allen v. Smith, 72 Miss. 689.

The presumption in favor of a decree includes conclusiveness, both of law and of fact. It will not be disturbed unless shown to be clearly wrong, being analagous in this respect to the verdict of a jury. Partee v. Bedford, 51 Miss. 84; Derdeyn v. Donovan, 81 Miss. 696.

Argued orally by A. Y. Scott, for appellant, and Fred Clark, for appellees.

OPINION

TRULY, J.

Upon the former appeal in this case (79 Miss. 406; 30 So. 691) it was decided that this "controversy is one as to priority of liens between the mortgagees and the landlord," and the cause was remanded for determination on the merits of the questions of waiver, estoppel, and priority of liens. Omitting consideration of all questions not necessary for decision, and accepting the finding of the chancellor upon conflicting testimony as conclusive, we find the following facts to exist: That Mrs. F. S. Hicklin was the owner of a plantation which was leased for a term of years to one W. D Moore, and that the notes of the tenant, representing the annual rent, had been, with the knowledge of the tenant, assigned and delivered to L. F. Dreyfus. During the year 1898, Moore, the tenant, had been supplied by Dreyfus, and paid the rent for that year to him; but, the crop raised being insufficient to pay his account, a balance of $ 2,400 was due Dreyfus at the close of the year's business; this balance being secured partially by a trust deed on work stock, worth approximately $ 600. In the early part of 1899, Dreyfus refusing to further supply Moore, the tenant, he applied to appellees for $ 1,200 in advances to enable him to make and gather a crop on the Hicklin place. After some negotiations, appellees agreed to make the advances upon condition that the lien of the landlord for rent should be waived, and that Dreyfus should transfer his security on Moore's personalty. These terms being satisfactory to Moore, the matter was by appellees submitted to their attorneys to prepare necessary papers. The landlord, Mrs. F. S. Hicklin, signed a waiver as required by appellees; and W. D. Moore having agreed with Dreyfus to pay him $ 300 out of the moneys to be advanced by appellees, and $ 300 out of his logging business, Dreyfus transferred to appellees, without recourse, the security which he held. During the course of the dealings between Moore and the attorneys for appellees, and before the final consummation of the transaction, Dreyfus urged the attorneys of appellees to make the loan to Moore, giving reasons why he personally could not continue the business; and, concealing the fact that he was the assignee of the...