Sutton v. Consol. Apex Min. Co.
| Decision Date | 01 March 1902 |
| Citation | 15 S.D. 410,89 N.W. 1020 |
| Parties | SUTTON et al. v. CONSOLIDATED APEX MIN. CO. et al. |
| Court | South Dakota Supreme Court |
On rehearing. Affirmed in part, and reversed in part.
For former opinion, see 84 N. W. 211.
This case was decided at a former term of this court, and is reported in 14 S. D. 33, 84 N. W. 211. A petition for rehearing was granted, and the case is now before us on such rehearing. Upon the reconsideration of the opinion, we have arrived at the conclusion that the court erred in that portion of the opinion in which it says, Upon a review of the findings there seems to be no specific finding that the mortgagees, or either of them, were in any manner misled to their prejudice by the conduct or acts of Farrar, or that they were induced or led to do what they otherwise would not have done except for his conduct and acts. In order to constitute an estoppel it is not sufficient to show that the language, acts, or conduct of one might have misled a party to his prejudice; but it must affirmatively appear that such party was in fact misled or induced by such acts, conduct, or language to do something that he would not otherwise have done, except for such acts, language, or conduct, and that he would be injured and sustain loss by allowing the party to show the existence of a different state of facts than those represented. This is the rule recognized by this court in Tolerton & Stetson Co. v. Casperson, 7 S. D. 206, 63 N. W. 908. In that case the defendant sought to defeat an attachment proceeding which he had encouraged the plaintiff to take, and the plaintiff insisted that he was therefore estopped from questioning the proceeding. It was affirmatively shown in that case that the attachment proceeding would never have been taken had not the agent of the plaintiff fully relied upon the statements of the defendant to him. This seems to have been the view taken by the courts in the cases cited by appellants in the case at bar. In Hinchley v. Greany, 118 Mass. 595, the supreme court of Massachusetts says “that when a party willfully misrepresents a fact to another, and on the strength of such false representation he is induced to alter his position, the former is precluded from setting up that the representation was not true.” And the court in that case cites, among others, Bank v. Buffinton, 97 Mass. 498. In that case the action was on promissory notes, and the defendant attempted to defeat the action on the ground that his purported signature as an indorser was forged, but it was shown that he had represented to the cashier of the bank that his signature was genuine, and the bank, relying upon that representation, had neglected to take action against the other parties to the notes. Upon this state of facts the court charged the jury as follows: “That if, upon all the evidence in the case, they should be satisfied that the defendant made the representation and statement or acknowledgment aforesaid, knowing it to be untrue, and with intent to mislead or induce the plaintiffs to act upon it, and that the plaintiffs did rely and act upon it, and were injured thereby, the defendant would be estopped from showing that his name on the back of said notes was not his genuine signature, and that it was not put there by him or by his authority.” This instruction was held to be correct. It will be noticed that in that case it was affirmatively shown that the bank, through its cashier, relied upon the representation of the defendant that his signature was genuine, and consequently neglected to take the proper steps to hold the other parties to the notes. In the case of Trowbridge v. Matthews, 28 Wis. 656, cited by appellants, the supreme court of Wisconsin recognizes a similar rule. In that case the plaintiff sought to enforce a mechanic's lien against the property, which had been purchased by defendant Matthews of one Jackson, and in...
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