Thomas v. Romano

• Decision Date: 06 April 1903
• Court: Mississippi Supreme Court
• Parties: MARY THOMAS v. CHRISTINA ROMANO

33 So. 969

82 Miss. 256

MARY THOMAS v. CHRISTINA ROMANO

Supreme Court of Mississippi

April 6, 1903

FROM the chancery court of Warren county. HON. WILLIAM P. S VENTRESS, Chancellor.

Mrs Romano, appellee, was complainant, and Mrs. Thomas appellant, was defendant in the court below. From a decree in complainant's favor defendant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Reversed and remanded.

Dabney & McCabe, for appellant.

It may be stated as a general rule, that the conduct relied on to sustain an estoppel must have been made with full knowledge of the facts by the party to be estopped, unless his negligence was the result of gross ignorance or otherwise involves gross culpability. 11 Am. & Eng. Enc. Law (2d ed.) 433.

It is perfectly certain that Mrs. Thomas did not know that she was the owner of the title to an undivided one-third interest in this land when Mrs. Romano bought from Hughes. On the contrary, it is perfectly certain that she believed that she had lost her title to the undivided one-third interest in the property, and this information she acquired from two first-class lawyers through P. L. Hennessey.

It may be stated as a general rule, that it is essential to the application of the principles of equitable estoppel, that the party claiming to have been influenced by the conduct or default of another to his injury, was himself not only destitute of knowledge of the state of facts, but was also destitute of any convenient or available means of acquiring such knowledge, and that where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel. 11 Am. & Eng. Enc. Law (2d ed.), 434.

There is no evidence that Mrs. Romano was destitute of knowledge as to the condition of the title which she obtained from Hughes, nor is there any evidence that she was destitute of any convenient and available means of acquiring such knowledge. There is abundant evidence that the facts were as well known to her as they were to Mrs. Thomas, and that both had the same means of ascertaining the truth.

J. M. Shelton and Shelton & Brunini, for appellee.

It is true Hennessey was the agent of Mrs. Thomas to sell the property and settle with Hughes, and any statement made to Mrs. Romano by Hennessey while negotiating the sale was a part of the res gestae, and is to be treated in law as if made by Mrs. Thomas herself.

The authorities to sustain this proposition are numerous, but we content ourselves with two. On page 1143, par. 3, vol. 1 (2d ed.), American & English Encyclopedia of Law, it is said: "The statements, representation, and admission of an agent, made in the execution and within the scope of an authority delegated to him and in reference to business depending at the very time, will be binding upon the principal as a part of the res gestae.

In Haven v. Brown, 22 Am. Dec., 211, the supreme court of Maine said: "The declarations of an agent, so far as they constitute a part of the res gestae, or in other words, such as are made by him at the time he is engaged in making a contract on the part of his principal, and having reference to the subject-matter of such contract, may be given in evidence to affect his principal. They are admitted as the representations of the principal himself, whom the agent represents while engaged in the particular transaction.

Representations made by an agent, at the time he is contracting for his principal, constitute a part of the contract, as much as if they had been made by the principal; and a fact stated by an agent in relation to a transaction, in which he is then engaged, and while it is in progress, forms a part of that transaction. But what he says at another and subsequent period cannot be evidence against the principal. The agent's declarations are received, not as an admission, but as part of the res gestae."

Hennessey went to see Hughes' attorney, from whom he learned what Hughes would take, and made a deed to the land. He also learned that the children's interest could not be sold except by a proceeding in the chancery court; and arranged with Mr. Brunini to prepare the papers and obtain the decree of the chancery court for the sale of the children's interest; and it was arranged that Mrs. Romano should pay Hughes the money demanded by him, and Hughes was to make a deed directly to Mrs. Romano, and when the sale of the children's interest was made, Mrs. Romano was to bid a certain sum on it.

The money that was to be paid by Mrs. Romano was to be paid for Mrs. Thomas' interest. It was to get what title Mr. Hughes had at the time.

Two facts clearly appear: First, that Hennessey was Mrs Thomas' agent, with full power to sell the land and settle the claim of Hughes and get a deed from Hughes; second, that in negotiating the sale, Mrs. Romano was told both by Mrs. Thomas' agent and her attorney that Hughes was to convey the land directly to Mrs. Romano, and that this would vest in Mrs. Romano a good title to the land, free from the claims of Mrs. Thomas; and that, relying on this statement, Mrs. Romano paid out her money to Hughes and took a deed...