Vogel v. Shaw

• Decision Date: 30 December 1930
• Docket Number: 1659
• Citation: 294 P. 687,42 Wyo. 333
• Parties: VOGEL v. SHAW (First Natl. Bank of Cody, Intervener)
• Court: Wyoming Supreme Court

294 P. 687

42 Wyo. 333

VOGEL v. SHAW (First Natl. Bank of Cody, Intervener)

No. 1659

Supreme Court of Wyoming

December 30, 1930

APPEAL from District Court, Park County, BRYANT S. CROMER, Judge.

Action by J. H. Vogel against Ernest F. Shaw, in which the First National Bank of Cody intervened. There was a judgment for plaintiff and defendant appeals.

Reversed.

For the appellant there was a brief and oral argument by Ernest J Goppert, of Cody, Wyoming.

The court erred in excluding evidence of Vogel's agency. 31 Cyc. 1661, 21 R. C. L. 820-822; Bergtholdt v. Co. (Cal.) 46 P. 738; R. R. Co. v. Adamson, (Ind.) 15 N.E. 5; Fritz v. Co., (Ia.) 114 N.W. 193; Bautz v. Adams, (Wis.) 111 N.W. 69; Plumb v Curtis, (Conn.) 33 A. 998; Johnson v. Co., (Nebr.) 64 N.W. 1100; Guaranty Co. v. Gleason, 78 N.Y. 503; Atherton v. Barber, (Minn.) 128 N.W. 827; Hildebrand v. Artisans, (Ore.) 79 P. 347; Morrison v. Whiteside, (Md.) 79 Am. Dec. 661. The court erred in denying evidence of estoppel pleaded against Vogel. 10 R. C. L. 688, 21 C. J. 1113; Bigelow on Estoppel, 508; Yates v. Hurd, (Colo.) 8 P. 575, 134 A. S. R. 172; Ricketts v. Scothorn, (Nebr.) 42 L. R. A. 794; Canal Co. v. Hathaway, (N. Y.) 24 Am. Dec. 51, 10 R. C. L. 675; Penn v. Heisey, 19 Ill. 295; Marling v. Fitzgerald, 120 N.W. 388. No consideration is necessary where estoppel is pleaded, and proven. 10 R. C. L. 689, 21 C. J. 1120, 40 Cyc. 263; Carpy v. Dowdell, (Calif.) 41 P. 695. Fraud is not a necessary element to constitute an estoppel. 10 R. C. L. 691; Glass v. Hulbert, 102 Mass. 24. The doctrine of estoppel, requires consistency of conduct where inconsistency would work substantial injury to the other party. 21 C. J. 1204; Stevens v. McNamara, 36 Me. 176. Estoppel is sufficient to pass interest or title to real estate. 10 R. C. L. 779, 21 C. J. 1148; Blodgett v. McMurtry, (Nebr.) 52 N.W. 706; Birch v. Steppler, (Colo.) 18 P. 530; and note following 13 L. R. A. 270. The doctrine is applicable to contracts within the statute of frauds. Seymour v. Oelrichs, (Cal.) 106 P. 88, 10 R. C. L. 833; Conley v. Johnson, (Ark.) 64 S.W. 277; McDowell v. McDowell, (Ia.) 119 N.W. 702; Rogers v. Maloney, (Ore.) 165 P. 357; Clement v. Rowe, (S. D.) 146 N.W. 700; Holstrom v. Mullen, et al., (Calif.) 257 P. 545; Smiley v. Barker, (Wyo.) 83 F. 684; Cross v. Co., (Ill.) 46 A. S. R. 902; Mattes v. Frankel, (N. Y.) 68 A. S. R. 804. Estoppel may be pleaded against representations of a future act, or to support a future promise. 10 R. C. L. 690, 21 C. J. 1119; Harris v. Brooks, (Mass.) 32 Am. Dec. 254; Comer v. Assn., (Calif.) 282 P. 532; Choppin v. Dauphin, 33 L. R. A. 133; Little v. Co., 238 P. 1066; Diamond v. Jacquith, (Ariz.) 125 P. 712; Dickerson v. Colgrove, 100 U.S. 226. The court erred in denying amendments to the pleadings. 5704-5707 C. S., 28 Wyo. 300; 32 Wyo. 271; 27 Wyo. 262.

For the plaintiff and respondent there was a brief by Kerper and Kerper, and Paul R. Greever, all of Cody, Wyoming, and oral argument by Mr. Greever.

The evidence disproves agency, but creates the relation of landlord and tenant, as between Dunn and Vogel. Shaw as successor to Dunn could not complain of alleged fraud practiced by Vogel upon Dunn. 27 C. J. 4 and 5; Potter v. Necedah Lumber Co., 81 N.W. 118. An assignment of a written lease must be in writing. Oil Co. v. Gibson, 19 Wyo. 1; Dunphy v. Ryan, 116 U.S. 491. Estoppel cannot be relied upon to give effect to avoid contract. Scott v. Bush, 26 Mich. 418; Rodgers v. Lamb Estate, 100 N.W. 440; Hickey v. Hinsdale, 12 Mich. 99; Lbr. Co. v. Wilson, 78 N.W. 338; Percifield v. Black, 31 N.E. 955; Long v. Cross, (Ind.) 21 N.E. 450; Dechenbach v. Rima, 78 P. 666. Estoppel in pais arises from misrepresentation or concealment of material fact, and can rarely arise unless it has reference to a present or past state of things. It has no application to a mere breach of promise or covenant relating to the future. Gjerstadengen v. Hartzell, 83 N.W. 230; McKinney v. Hindman, 169 P. 93; Starry v. Korab, 21 N.W. 600; 21 C. J. 1142; Nehls v. Williams Co., 184 P. 212; Booth v. Levy, 131 P. 1062; Sellers v. Co., 160 P. 175; Johnson v. Co., 272 F. 291. One who is a party to a scheme to defraud, cannot set up estoppel. 21 C. J. 1138. The amendments permitted at the trial were within the discretion of the court. 5707 C. S. In this case, appellant is merely attempting to circumvent a positive statute by testimony of an oral nature, upon which in no event could a suit be predicated either upon contract or upon any other theory.

RINER, Justice. BLUME, C. J., concurs. KIMBALL, Justice. Dissenting.

OPINION

RINER, Justice.

This case is here by direct appeal from a judgment of the District Court of Park County, entered in favor of the respondent J. H. Vogel, who was the plaintiff below, and against the appellant and defendant Ernest F. Shaw.

Summarized, the pleadings of the parties are to the following effect: Plaintiff's petition alleged that the owner of a certain building, known as the Neff Building, located in the town of Cody, Wyoming, leased it on October 11, 1923, to the plaintiff for a period of five years at a rental of $ 75 per month; that on April 22, 1925, the ownership of the property having meanwhile changed, the then owner authorized the plaintiff to sublease the building; that on May 23, 1925, pursuant to such authority, plaintiff subleased the property at a rental of $ 100 per month to a Mrs. J. F. Files, payment of rentals to begin September 1, 1925--the term of the sublease running from September 1, 1925 until November 1, 1928; that the sublessee took possession of the premises; that this sublease was placed of record in the office of the county clerk of Park county and with knowledge of it the defendant, on or about May 6, 1927, purchased the property aforesaid, and demanded of the sublessee the entire rental of $ 100 per month; that it was agreed between the parties that the sum of $ 25 per month--this amount being the difference between the rentals due under the original lease and the sublease, should be deposited in a local bank, to be held by it until the disposition of the controversy between plaintiff and defendant, and that $ 450 was thus paid to the bank and so held by it; that plaintiff has demanded of defendant and the said bank payment of this amount, but his demand has been refused and that defendant is indebted to plaintiff in the sum aforesaid. Judgment was asked that the bank be directed to pay to plaintiff money thus held by it.

Defendant's answer put in issue most of the allegations of the petition, though admitting the making of the original lease and the agreement of the parties for the retention by the bank of the several payments of $ 25 per month. By way of cross petition, after incorporating therein the allegations of his answer and averring that the $ 450 paid by Mrs. Files to the bank is his property, defendant alleged, in paragraph 3 of said cross petition, that on or about April 28, 1927, he entered into an agreement for the purchase of the property aforesaid; that at and prior to the making of said agreement, the plaintiff solicited the defendant to purchase said property, and represented to the latter that if defendant would buy the property, that plaintiff would assign and transfer to him all rental money due under the Files lease; that defendant, relying upon plaintiff's representations and with the distinct understanding and agreement that plaintiff would do this, made and entered into the written agreement to purchase the property aforesaid; that defendant would not have entered into the agreement of purchase had it not been for plaintiff's representations thus made, and that plaintiff is estopped from claiming the rental money due on the Files' lease. Defendant also alleged, in paragraph 4 of his cross petition, that since the execution of the contract of purchase by him, plaintiff had attempted to withdraw and repudiate his agreement to permit the defendant to collect all the rentals on the Files lease, and for that reason the sum of $ 25 per month was deposited in the bank and is defendant's property. The cross petition further alleges a demand upon plaintiff and the bank for the sum of $ 450, and concludes with prayer for judgment against them in that amount.

Plaintiff's reply placed in issue the affirmative averments of the answer and cross petition. During the course of the trial, defendant was allowed to amend his answer by inserting therein paragraphs 3 and 4 of the cross petition.

The cause came on for hearing before the court with a jury in attendance, and at the conclusion of the introduction of defendant's evidence, upon plaintiff's motion, the court instructed the jury to return a verdict in plaintiff's favor. The judgment complained of here was entered upon the verdict so rendered.

After plaintiff had introduced his evidence, the same including proof of the original lease and sublease and the authority to make the sublease in favor of the plaintiff, and the latter had rested his case, defendant offered to prove by his own testimony, among other things, in substance that, on April 28, 1927, plaintiff stated to him, in a conversation had on that day at which a representative of the owner of the property was present, that if he (Shaw) would purchase the Neff Building from its owner for $ 12,000, plaintiff would turn over to Shaw both the Files lease and plaintiff's lease on that property; that plaintiff said: "Go on up to the attorney's office, fix up the papers to buy the property, and I will turn over the leases and all the rentals beginning May 1, 1927;" that during the conversation aforesaid had with plaintiff on April 28, 1927, defendant Shaw advised plaintiff that he would not be interested in the building at all,...