Lee v. Calvert

• Decision Date: 10 February 1900
• Parties: LEE v. CALVERT.
• Court: Tennessee Supreme Court

Page 627

57 S.W. 627

LEE v. CALVERT.

Court of Chancery Appeals of Tennessee.

February 10, 1900.

Appeal from chancery court, Dekalb county; T. J. Fisher, Chancellor.

Bill by Z. P. Lee against J. L. Calvert to recover money paid to defendant. From a decree in favor of plaintiff, defendant appeals. Reversed.

Webb & Cantrell, for appellant. Wade & Robertson, for appellee.

NEIL, J.

On the 21st of September, 1889, the complainant executed to the defendant the following note: "One day after date, I promise to pay to J. L. Calvert one hundred and twenty-seven dollars and ninety-five cents, for value received of him this September 21, 1889. This note is given for one-half of a judgment that Turner Brothers obtained against J. L. Calvert and myself, security to Albert Frazier. [Signed] Z. P. Lee." Mr. Lee paid this note, and afterwards brought the present suit to recover from the defendant, Calvert, the amount of such payment, with interest. The chancellor sustained complainant's bill, and rendered a decree in his favor for $207.66; that being the amount of the note, with interest from the date of payment. The defendant has appealed and assigned errors.

The substance of the complainant's claim is that at the time he executed this note to the defendant he was informed by the defendant that the latter had paid the whole of the judgment mentioned in the note, out of his own means, but that shortly before the filing of the bill he learned that such was not the fact, but that the defendant had been repaid by Frazier in a certain land transaction between the two in settlement of a $370 note which Mr. Calvert executed to Frazier in the land transaction referred to. The whole foundation of the complainant's case is that the defendant stated such to be the fact in a deposition which he gave in the case of Ada Frazier et al. v. J. L. Calvert et al., wherein the litigation concerned the land trade referred to. It is insisted by the present complainant that the defendant is estopped to deny the statement made by him in that deposition. The defendant admits that he did make this statement, and a copy of the deposition out of the old record filed in the present case shows that he did make the statement; but he testifies in the present case that it was an inadvertent statement, and did not truly represent the fact. The rule upon this subject is thus stated in Allen v. Westbrook, 16 Lea, 251, at pages 255, 256: "It is insisted in behalf of the complainants that the defendant is estopped to assert title to the property by his statement under oath in the replevin suit brought by the complainants against one of his creditors for some of the personalty that the property sued for did not belong to him, but to the complainant, Jane, under the deed of gift. And it may be considered as settled by the decisions of this court that a person cannot, upon grounds of public policy, be permitted to set up title to property after a solemn disclaimer of the title under oath or a solemn admission under oath of title in another, in a pleading or deposition in a previous suit. McEwen v. Jenks, 6 Lea, 289; Cooley v. Steele, 2 Head, 605; Stillman v. Stillman, 7 Baxt. 169; Stephenson v. Walker, 8 Baxt. 289; McCoy v. Pearce, Thomp. Tenn. Cas. 145. It is equally well settled that such statements will not estop the party from proving the truth, if he can show that they were made inconsiderately, by mistake, or without full knowledge of the facts. Seay v. Ferguson, 1 Tenn. Ch. 287; Chilton v. Scruggs, 5 Lea, 308; Smith v. Fowler, 12 Lea, 163; Hamilton v. Zimmerman, 5 Sneed, 39. In other words, the oath, to be binding as an estoppel, must be willfully false, or must have the effect of misleading the other party to his injury. Behr v. Insurance Co., 2 Flip. 692, 4 Fed. 357. Our cases have generally involved admissions or statements by some pleading or depositions; but, as statements in pais will often estop the party making them, an oral statement under oath, if willfully false, or acted upon, must be equally as binding as if reduced to writing." See, also, Gibson v. Willis (Tenn. Ch. App.) 36 S. W. 154, 157, 158. From the foregoing authorities, it is seen that the party making a statement in a deposition between third parties is not absolutely and unconditionally bound by it, but that he may show that it was an inadvertence. The proof in the present case shows very conclusively, to our minds, that the statement made by Mr. Calvert was wholly an inadvertence. We have read carefully his deposition in the present case, and also in the former case, and we are fully convinced that he is an upright and honest man. In addition to this it appears that in 1890 he filed an account with the clerk of the county court of Dekalb county against the estate of Mr. Frazier, in which the facts were truly stated, showing that he had paid out of his own means the whole of the judgment on which he and the present complainant were bound for Frazier, but that the $370 note was applied only on half, and also on sundry other obligations which Frazier owed to him. It does not appear that the whole of the $200 note or of the judgment thereon mentioned in the present bill was covered by the $370 note. Mr. Calvert testifies in the present case that at the time his deposition was given, in 1896, the above-mentioned account was mislaid, or he did not have access to it. At all events, he made the statement in the absence of that account. Yet he refers to it in his deposition, and states the balance that appeared upon that account as $257.11, after an allowance of all credits. A reference to that paper would have shown the facts to be as he now states them. It thus appears that Mr. Calvert's testimony upon the subject of the $200 note was not willfully false, but a mere inadvertence. He is therefore not estopped from showing in the present case the true facts. We have no doubt, under this record, that the facts are as he now states them. It results that the chancellor was in error in rendering a decree against him, and that decree is reversed, and complainant's bill dismissed, with the costs of this court and of the court below. All the judges concur.

(Feb. 24, 1900.)

This case was before us at a former day of the term, and was then decided, and an opinion rendered. There is now presented to us a petition to find the following additional facts: "(1) That, at the time the $370 note was executed by defendant to A. E. Frazier, it was agreed by them that this note was to be discharged by the payment by defendant of any debts for which defendant was liable as surety for said Frazier. (2) That the $200 Turner Bros. note was given in 1885, before the land trade in 1886. (3) That the judgment on this...