McCormack v. Arizona Central Bank

• Decision Date: 23 February 1898
• Docket Number: Civil 611
• Parties: C. S. McCORMACK et al., Defendants and Appellants, v. THE ARIZONA CENTRAL BANK, Plaintiff and Appellee
• Court: Arizona Supreme Court

52 P. 469

5 Ariz. 278

C. S. McCORMACK et al., Defendants and Appellants, v. THE ARIZONA CENTRAL BANK, Plaintiff and Appellee

Civil No. 611

Supreme Court of Arizona

February 23, 1898

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. J. J. Hawkins Judge. Affirmed.

The facts are stated in the opinion.

Herndon & Norris, for Appellants.

Edward M. Doe, for Appellee.

Appellants seek to invoke an estoppel against the bank because of its cashier's promise to release the note and send it to Boyce, and because of subsequent advances claimed to have been made by Boyce in reliance thereon. But the promise upon the faith of which Boyce it is claimed acted had reference to action in the future. It was but the expression of an intention which Boyce would have no legal right to act upon because circumstances might change and the promisor's mind change with them. Mr. Bigelow says: "The representation or concealment must, in the second place, like a recital in all ordinary cases, have reference to a present or past state of things; for if a party make a representation concerning something in the future, it must be generally a statement of intention or opinion, uncertain to the knowledge of both parties, or it will come to a contract with the peculiar consequences of a contract." Bigelow on Estoppel, 555.

In Langdon v. Doud, 10 Allen, 433, the court says: "A person cannot be bound by any rule of morality or good faith not to change his intention, nor can he be precluded from showing such a change merely because he has previously represented that his intentions were once different from those which he eventually executed. . . . The reason [of the doctrine of estoppel] wholly fails when the representation relates only to a present intention of a party, because being in its nature uncertain and liable to change, it could not properly form a basis or inducement upon which a party could reasonably adopt any fixed and permanent course of action." See, also, Strong v. Korab, 65 Iowa 267; Allen v. Hodge, 51 Vt. 393; Jackson v. Allen 120 Mass. 64.

The rule to which appellants invoke the attention of the court in this proposition is clearly inapplicable in this case for the further reason that an estoppel in pais cannot be created where neither fraud nor injury exist. Flower v Elwood, 66 Ill. 433; People v. Brown, 67 Ill. 435.

OPINION

SLOAN, J.

-- The appellee, the Arizona Central Bank, brought suit in the court below to foreclose a mortgage upon real estate in Coconino County given by appellants C.S. and Anna McCormack, to secure their promissory note in the sum of $497, dated December 9 1892, and due two years after date. This note was made payable to William Nellis or order. The appellant C. E. Boyce was made a party defendant upon the ground, as stated in the complaint, that said Boyce claimed some interest in the note and mortgage sued upon by reason of an attempted assignment of the same by Nellis, the payee of the note, to said Boyce. The defendants in the action, appellants here, in their answer set up that the Arizona Central Bank had no interest in the note and mortgage sued upon at the time of suit, and alleged that the note, shortly after its execution, had been placed with the said Arizona Central Bank by said Nellis to secure an overdraft; that, after the said overdraft had been paid and settled by said Nellis, the note was left with the said bank for safe-keeping, and while so held Nellis sold and transferred the same to appellant Boyce, together with the mortgage, for a valuable consideration, by a duly executed and recorded assignment; and further alleged that, upon the execution of the assignment, Nellis gave Boyce an order in writing upon the Arizona Central Bank to turn over the note to said Boyce; and that thereafter Boyce demanded the note of J. H. Hoskins, cashier of the bank; that upon said demand said Hoskins refused to deliver the note until he could see Nellis, the payee; that thereafter Boyce, in company with said Nellis, visited the bank, when Boyce again demanded the note, and Nellis then instructed Hoskins, the cashier, to deliver it up to Boyce, but that he did not deliver it at that time for the reason that he (said Hoskins) claimed that it had been mislaid, and then and there promised and...