Ware v. Cowles , 24 Ala. 446 ( 1854 )

GOLDTHWAITE, J.

:The first question presented upon the record is, whether, upon the ease made by the bill; Cowles was estopped from asserting his title against Seales and Jones. It is clear, both upon principle and authority, that the conduct or admission which concludes a party must be plainly inconsistent with the right which he afterwards sets up. —Pickard v. Sears, 6 Adol. & El. 469 ; Co. Litt. 352. If the act or admission be susceptible of two constructions, one of which is consistent with the right, the party would not be concluded from its assertion, because-to do so might operate to defeat a man’s rights by argument or inference, which is not allowable (Co. Litt. 352 b). So, too, the admission, however unequivocal it may be, will not operate as an estoppel unless the other party has acted upon it.—Heane v. Rogers, 9 B. & C. 577; Wallis v. Truesdell, 6 Pick. 445.

In the case before us, it appears that the only object of the parties, in calling upon Cowles, was to ascertain if he would recognize the verbal sale which he had previously made to Ware. This he did, and consented that Ware might sell the land to Seales, and that he would look to the former for the purchase money. Taking all the facts in connection with each other, we are by no means certain that Cowles intended any thing more than that Ware might sell the land in the same manner as he might have done had the agreement been in writing. The bill admits, that the verbal contract was the same as the written one subsequently euteréd into; and that being the case, by its terms, the titles were not to be made until the purchase money had been settled; and it would be unreasonable to suppose that Cowles, in giving his consent to Ware to sell, intended to change the agreement in one of its substantial terms. This consent might as well refer to the transfer of the equitable title, which Ware would have had if the agreement had been put in writing; and to carry it further would be to create an estoppel by inference. We say nothing as to the discharge of the lien upon the land, because we do not consider that question presented upon the record, as it is not charged that Seales was influenced in his action, as to the buying of the land, by the conduct of Cowles in agreeing to look to Ware for the purchase money.

If we could allow the written agreement, made between Ware and Cowles, to be varied by parol proof, then it is very clear that the complainant, if not entitled to a specific performance, would have been at least entitled to an injunction until the settlement of accounts between Ware and Cowles; but the rule as to contradicting or varying a written instrument by parol evidence, obtains with the same force in equity as at law.—Bank of Mount Pleasant v. Sprigg, 14 Peters 201. The agreement is certain upon its face; the bill charges neither fraud nor mistake in its execution; and its terms could not, therefore, be permitted to be changed by proof of a parol contemporaneous agreement, that the purchase money was not to be paid at the time specified in the written contract, hut to await a settlement of accounts between the parties. Warc cannot call upon the court to aid him, because he has not complied, nor offered to comply with the agreement on his part; and his assignees, so far as a specific performance is concerned, stand in no better condition than himself; and Cowles not being concluded by his consent that Ware might sell, the other parties are not entitled to an injunction generally. Jones may have a separate claim for his improvements, and the decree of the Chancellor was without " prejudice to the assertion of that claim.

The decree must be affirmed, the appellants paying the costs of this court.