Houston Nat. Bank v. Eldridge , 17 Ala. App. 235 ( 1919 )

The plaintiff's claim rested upon the fact that there had been deposited with the defendant for her and for collection two promissory notes payable to her and aggregating $500; that this money had been collected by defendant and never paid to her, or to her order or used for her benefit. The defendant filed pleas undertaking to set up an estoppel in pais against the plaintiff, and now assigns as error the rulings of the court in sustaining the demurrers to pleas 7, 8, and 9, together with other assignments as to the admissibility of evidence which will be treated later.

An "estoppel," as defined by Lord Coke, is, in effect, a man's act or acceptance which stops or closes his mouth to allege or prove the truth. Co. Lit. 352a. Wherever found and established, estoppel should be enforced as being "conducive to honesty and fair dealing and promotion of justice, and to stand on the broad ground of public policy and good faith. 10 R. C. L. 695. In order, however, for an estoppel to be properly pleaded, it must be definitely alleged that the party against whom the estoppel is sought to be invoked made representations or assumed a position where otherwise inequitable consequences would result to another who, having the right to do so under all the circumstances of the case, has, in good faith, relied thereon to his prejudice. In 10 R. C. L. p. 689, note 10, has been collated a long line of decisions to sustain the foregoing, which is a paraphrase of the text in that work. See, also, Bain v. Wells, 107 Ala. 562, 19 So. 774; Nelson v. Kelly, 91 Ala. 569, 8 So. 690. And the fact that a party has on other occasions omitted to enforce a clear right as to some property affords no reason why he should be defeated as to legal claims upon other property, on which he does finally assert them. First Nat'l Bk. of Batavia v. Ege, 109 N.Y. 120,16 N.E. 317, 4 Am. St. Rep. 431. Pleas 7, 8, and 9 did not make the required allegations, and demurrers thereto were properly sustained. Aside from the foregoing, the court would not be reversed on account of its holdings on the demurrers, for the reason that, on the trial below, all the facts and circumstances bearing on the question of estoppel were fully developed and set forth in the evidence, and these facts conclusively refute the allegations of the pleas. That being the case, the court could not be reversed for its rulings on the demurrers. Going v. Ala. Steel Wire Co., 141 Ala. 537,546, 37 So. 784; Southern Ry. Co. v. Cunningham, 152 Ala. 147,44 So. 658; Empire Imp. Co. v. Lynch, 181 Ala. 473,62 So. 16.

The court did not err in refusing to permit the checks drawn by Fritter on the Dothan National Bank and on the First National Bank and payable to Mary W. Eldridge to be introduced in evidence. It is true these checks were the property of plaintiff, given as part payment on her property; but she had a right to dispose of it as she saw fit, or, it having been used by her husband, to waive claim for it. This fact would not estop her from enforcing her claim to the other money. 10 R. C. L. p. 691. The court did not err in excluding as evidence the statement of Forrester, the defendant's cashier, as follows: "The account is headed Eldridge Bros., and that was for the whole Eldridge family — all of them." The answer was too general and not confined to the issues involved. Assuming that N.T. Eldridge was the agent of Mary W. in the transaction involving the sale of her land, the collection of a part of the purchase money and the taking of notes payable to her and depositing those notes with the defendant bank for collection, conceding even that it could have been proven that N. T. was the general agent of plaintiff, in the absence of express authority, this would not have authorized "N. T." to transfer plaintiff's property in payment of his own debts, contracted by him, for his own benefit, and in which plaintiff had no interest or benefit, where, as in this case, it is shown without conflict that the defendant knew that the notes belonged to plaintiff and also knew that the debt on which the proceeds were applied was, in fact, the debt of N.T. Eldridge. 21 R. C. L. p. 913, § 92. The principal is liable for the agent's act within the scope of his actual or apparent authority, where the principal holds the agent out as having such authority, but the doctrine of apparent authority can be invoked only by one who has been misled to his prejudice by the apparent authority; hence, where the agent owed a debt, and undertook to pay that debt by the transfer of his principal's property, and the creditor took it with notice that it was the property of the principal, there is no rule of equity or conscience that would allow the creditor to retain such property or its proceeds against the timely claim of the principal. Patterson v. Neal, 135 Ala. 482,33 So. 39; Bowdon Line Works v. Moss, 14 Ala. App. 435,70 So. 292. It follows that the various rulings of the court on the admissibility of evidence were without error.

We find no error in the record, and the judgment is affirmed.

Affirmed.