Scharfenberg v. Town of New Decatur

• Court: Supreme Court of Alabama
• Writing for the Court: TYSON, C.J.
• Citation: 47 So. 95,155 Ala. 651
• Decision Date: 18 June 1908
• Parties: SCHARFENBERG v. TOWN OF NEW DECATUR.

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 & 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 [47 So. 96] 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...