Scharfenberg v. Town of New Decatur

• Decision Date: 18 June 1908
• Citation: 47 So. 95,155 Ala. 651
• Parties: SCHARFENBERG v. TOWN OF NEW DECATUR.
• Court: Alabama Supreme Court

47 So. 95

155 Ala. 651

SCHARFENBERG v. TOWN OF NEW DECATUR.

Supreme Court of Alabama

June 18, 1908

Appeal from Chancery Court, Morgan County; W. H. Simpson Chancellor.

Suit by William Scharfenberg against the town of New Decatur. From a decree for defendant, complainant appeals. Reversed and rendered.

E. W Godby, for appellant.

Brown &amp Kyle, for appellee.

TYSON C.J.

This case was before the court on a former appeal, and is reported in 147 Ala. 367, 41 So. 1025. On that occasion it was held that pleas 4 and 5 were sufficient. These pleas set up, as an estoppel against the relief prayed, that appellant had induced the defendant to undertake the work complained of and to incur pecuniary liabilities therefor. On the return of the case to the lower court the bill was amended, and went into greater detail as to the injurious consequences of the change of the grade of the street, and made averments to meet the allegations of these pleas. Said pleas 4 and 5 were then amended, and a new plea, No. 7, filed, and, the case being submitted as to the sufficiency of these pleas, the chancellor sustained them, and this appeal is to reverse that decree. The question, therefore, on this appeal, is as to the sufficiency of said pleas 4, 5, and 7 to the bill as amended. We refer to the report of this case and the opinion pronounced in it for a full statement of the points involved.

Pleas 4 and 5 were then taken, and now, with the added plea 7, may be regarded, as setting up the same defense, to wit, the estoppel in pais then considered and held to be sufficient. The essential nature and requirement of a plea at law or in equity is that it shall completely answer the bill, at least to the extent that it purports to be a defense; and therefore, if any material allegation is not negatived by a traverse or confession and avoidance, it is necessarily taken as true in considering the plea, and will render it bad. 16 Cyc. 288; McKay, etc., v. So. Bell Tel. Co., 111 Ala. 351, 19 So. 695, 31 L. R. A. 589, 56 Am. St. Rep. 59. "The averments of a plea must be certain, precise, and such as are necessary to avoid all ambiguity of meaning and exclude all intendments. * * * If we allow the averment to be true, but at the same time a case may be supposed consistent with it which would render the averment inoperative as a full defense, such a case will be presumed or intended, unless excluded by particular averments." Whitlock v. Fisk, 3 Edw. Ch. (N. Y.) 131. The matter in the plea must be a complete bar to the equity in the bill. Rhode Island v. Massachusetts, 14 Pet. (U. S.) 271, 10 L.Ed. 423. The fundamental doctrine of an estoppel in pais is well stated in Jones v. McPhillips, 82 Ala. 115, 2 So. 468. It is conduct intended and calculated to induce, and in fact inducing, another person to alter his condition, so that it would be a fraud upon him to allow the other party to take an inconsistent attitude to his detriment. Leinhauff v. Munter, 76 Ala. 194; Ware v. Cowles, 24 Ala. 446, 60 Am. Dec. 482; Henshaw v. Bissell, 18 Wall. (U. S.) 255, 21 L.Ed. 835. Mr. Bigelow says: "Conduct, as the basis of an estoppel, must have been intended for the other party to act on, and he must have been induced to act upon it." Bigelow on Estoppel, 570.

The estoppel allowed on the former appeal was that the complainant, with full knowledge of the proposed improvement and change of grade of the street, consented thereto, and requested the city officials to proceed with the work; that they were induced to act, and did act, on this request and consent, and incurred liabilities and expense. These circumstances were alleged as sustaining this plea: One, that the complainant had petitioned defendant to have the street improved; another, that defendant was advised by skillful engineers that the improvement should be after the plan adopted as to grade of streets; and, third, that "after said grade had been raised and established, as it now is, one of defendant's councilmen, a member of the street committee, having said work under supervision, went to complainant and advised him of the change of said grade, and the said complainant told said councilman to go ahead and do the work on the grade established, that he was going to raise his house anyway, and that he wanted the street fixed right * * * and that this defendant, acting upon said proposition * * * and of said declaration and consent," did the work and entered into obligations for work and labor, etc. The petition set out in the pleas had no suggestion as to how the improvement was to be made, nor contained any express or implied waiver of damages on the part of the...