Farber v. Page & Mott Lumber Co.

• Decision Date: 11 October 1911
• Citation: 20 Idaho 354,118 P. 664
• Parties: GEORGE FARBER; Appellant, v. PAGE & MOTT LUMBER CO., Respondent
• Court: Idaho Supreme Court

118 P. 664

20 Idaho 354

GEORGE FARBER; Appellant, v. PAGE & MOTT LUMBER CO., Respondent

Supreme Court of Idaho

October 11, 1911

ESTOPPEL-SILENCE AND LACHES-WHEN SILENCE MISLEADS.

(Syllabus by the court.)

1. Where L. Co. employed G. Bros. to cut and deliver a quantity of lumber for a specified price and supplied the employees with printed time checks, with the direction that they issue such time checks for labor and material and supplies, and these time checks bore the name of the L. Co. and were issued on such company, signed by one of the G. Bros. as foreman and F. furnished G. Bros. supplies and took such time checks in return therefor and accepted time checks from laborers and employees of the company in exchange for goods and merchandise, and L. Co. paid such checks from time to time for many months and running into many hundreds of dollars and numbering some fifty or sixty, and F. had no notice that L Co. did not intend to continue to pay such time checks, and the L. Co. thereafter refused to pay a number of such checks on the grounds that G. Bros. had exhausted the amount of their contract price, and F. had no notice that G. Bros. were contractors for a fixed price, and L. Co. knew that F. was accepting the time checks for supplies and value held, that L. Co. should in equity and good conscience be estopped from denying its liability or setting up the defense that the G. Bros. had been paid the full amount of their contract price.

2. Where a person, knowing the facts, remains silent when he ought, in justice and good conscience, to speak up and make known the real truth of the situation, and where his silence is calculated to prove misleading and disastrous to an innocent party, and the innocent party acts in good faith upon the appearance of the situation, assuming the silence of the other party to be in conformity with the real facts of the transactions, equity and good conscience will estop the party who remains silent when he ought to have spoken from thereafter asserting the real facts when to do so will work a fraud upon such innocent party.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Fremont Wood, Judge.

Action by the plaintiff to recover on certain time checks. Judgment for the defendant and the plaintiff appealed. Reversed.

Judgment reversed and a new trial ordered. Costs awarded in favor of appellant.

Chas. M. Kahn, for Appellant.

"Under all the law and evidence the appellant is entitled to a reversal, for the reason that the estoppel of respondent has been established.

"Whenever a party has by his own act, declaration, or omission deliberately and intentionally led another to believe a particular thing true and to act upon such belief, he cannot be permitted to deny it." (Bigelow on Estoppel, 4th ed., 445; Herman on Estoppel, sec. 788; 16 Cyc. 679, 722-724; 11 Am. & Eng. Ency. of Law, 2d ed., 387; Pomeroy Eq. Jur., sec. 804.)

"Fundamental element of estoppel is that the party sought to be estopped has said or done something in reliance on which the person in whose favor the estoppel is invoked has acted or relied to his prejudice." (Maryland Telegraph & Telephone Co. v. Ruth, 106 Md. 644, 124 Am. St. 506, 68 A. 358, 14 L. R. A., N. S., 427, 14 Ann. Cas. 576; Nell v. Dayton, 43 Minn. 242, 45 N.W. 229, 230; Branson v. Wirth, 17 Wall. (U.S.) 32, 21 L.Ed. 566; Dickerson v. Colsgrove, 100 U.S. 578, 25 L.Ed. 618, 619; Dolbeer v. Livingston, 100 Cal. 617, 35 P. 328.)

Where a person with actual or constructive knowledge of the facts induces another by his words or conduct to believe that he acquiesces in or ratifies a transaction, or that he will offer no opposition thereto, and that other, in reliance on such belief, alters his position, such person is estopped from repudiating the transaction to the other's prejudice. (16 Cyc. 791, 792; Bigelow on Estoppel, sec. 632; 11 Am. & Eng. Ency, of Law, 2d ed., 427; Herman on Estoppel, sec. 776; Martin v. Webb. 110 U.S. 5, 3 S.Ct. 428, 28 L.Ed. 49; Carpy v. Dowdell, 115 Cal. 677, 47 P. 695; Scott v. Jackson, 89 Cal. 258, 26 P. 899.)

"He who does not forbid what he can forbid seems to assent." (Herman on Estoppel, sec. 735; Marshal v. Foltz, 221 Pa. 570, 70 A. 857; Priewe v. Wis. State Land & Imp. Co., 103 Wis. 537, 74 Am. St. 904, 79 N.W. 780.)

"Wherever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it." (16 Cyc. 773; Madden v. Caldwell Land Co., 16 Idaho 59, 100 P. 358, 21 L. R. A., N. S., 332; Pennypacker v. Latimer, 10 Idaho 625, 81 P. 55.)

"Whenever a person has held out another as his agent authorized to act for him in a given capacity, or has knowingly and without dissent permitted such other to act as his agent in such capacity, or where his habits and course of dealing have been such as to reasonably warrant the presumption that such other was his agent, authorized to act in that capacity, his authority to such other to act for him in that capacity will be conclusively presumed, so far as it may be necessary to protect the rights of third persons who have relied thereon in good faith and in the exercise of reasonable prudence." (Mechem, Agency, 84; also Thompson's Comm. on Corporations, sec. 4880; Mosley v. Morgan, 141 Ky. 557, 133 S.W. 226; Jones Cotton Co. v. Snead (Ala.), 53 So. 988; Hubbard v. Tenbrook, 124 Pa. 291, 10 Am. St. 585, 16 A. 817, 2 L. R. A. 823; Over v. Schiffling, 102 Ind. 191, 26 N.E. 91; Rice v. Groffmann, 56 Mo. 434.)

Paris Martin, for Respondent.

The appellant cannot invoke the doctrine of estoppel because he was not reasonably prudent. He did not exercise that degree of prudence which an ordinarily prudent man would have exercised under like circumstances. (Gregory v. Loose (Wash. 1898), 54 P. 33; Van Allen v. Francis, 123 Cal. 474; Clark & Skyles, Law of Agency, p. 140; Davidson v. Jennings, 27 Colo. 187, 83 Am. St. 49; Moore v. Bowman, 47 N.H. 494; Douglass v. Craig, 13 S.C. 371; 2 Herman on Estoppel, sec. 969.)

The fact that the appellant did not show that he knew that the printed order blanks were furnished by the respondent to the Guay Brothers precludes the appellant from using such fact as a basis of estoppel. Facts necessary to work an estoppel must appear affirmatively. (Hill v. Epley, 31 Pa. 331.)

Appellant did not make any inquiry disclosing to respondent that appellant was not fully cognizant of the true state of affairs and the true relations between respondent and the Guay Brothers, so there was no duty on the part of the respondent to speak. (77 Am. & Eng. Ency. of Law, 427.)

"It does not appear that the acts of the company which are supposed to have been sufficient to justify a belief in the agent's authority were known to the plaintiff, and if not, they could not have generated in his mind any belief on the subject of agency." (Harris v. San Diego Flume Co., 87 Cal. 526.)

Representations made or acts done subsequent to the change of position by the other, which they do not invite or influence, will not operate as an estoppel. (77 Ency. of Law, 439.)

Where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. (11 Am. & Eng. Ency. of Law, 2d ed., 434.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This action was prosecuted by the appellant, George Farber, against the respondent company for the recovery of $ 1,543.47 on eighteen time checks. The checks had been issued by one John Guay. These time checks were issued to various parties for work and labor and supplies, and were duly assigned and delivered to the appellant herein. The plaintiff rested his right of recovery upon a state of facts which he claimed constituted an estoppel against the lumber company. Judgment was entered in the lower court in favor of the defendant and the plaintiff has appealed.

During the years 1907, 1908 and 1909, James Guay, William Guay and John Guay were engaged in getting out logs in the vicinity of Pine, Idaho, for the Page & Mott Lumber Co. It seems that the three brothers formed a partnership and that John was in charge of the work. They were doing this work under contract which they had with the Page & Mott Lumber Co., the respondent herein. For convenience we will hereafter refer to the respondent simply as the lumber company. When they began the work, they issued a number of time checks which were written out on blank paper. This in some way did not suit the lumber company, and so they prepared a printed form of time check and put them up in books of a hundred each, and supplied the Guays with these books as long as they needed them. The evidence shows that during the prosecution of this work they furnished three books. These time checks were filled out in accordance with the facts in-each particular transaction, and signed by John Guay as foreman and issued to the various workmen and those furnishing supplies and materials. The following check issued to William Guay is set forth in the transcript, and it is stipulated that all the other seventeen are in the same form as this one (though issued to different persons):

"No. 1154.

Dec. 5, 1908 [in writing].

Page & MOTT LUMBER CO.

Name: W. M. Guay [in writing].

No. of days . . . . Rate per Mo. . . . Total, $ 125.00

[amount in writing]

Bal. on Interest on Logs and all Labor . . . .

[all in writing]

Camp Acct. Merchandise: Burning Brush.

[words 'burning brush' in writing]

Cash drawn

Other accounts

Board

Total Amt. Drawn

Payable at Office. Balance Due

$ 125.00

[amount in writing]

Name of Foreman:

JOHN GUAY.

[Name 'John Guay' in writing.]"

The lumber company instructed the Guay Bros. to issue...