Hill v. Van Sandt , 1 Kan. App. 367 ( 1895 )

Tlie opinion of the court was delivered by

Dennison, J. :

The only question necessary to be decided in the determination of this case by this court is whether or not Luther Hill, the plaintiff, is estopped from setting up his ownership in the goods sued for in this case. If he were not so estopped, then the instructions would be erroneous and prejudicial, and this case would have to be reversed. In order to constitute an estoppel in pais, the doctrine is clearly laid down that all of the five following elements must be present:

“1. There must have been a representation or a concealment of material facts.

“ 2. The representation must have been made with knowledge of the facts.

‘ ‘ 3. The party to whom it was made must have been ignorant of the truth of the matter.

“4. It must have been made with the intention that the other party should act upon it.

"5. The other party must have been induced to act upon it.” (Bigelow, Estop., p. 480, and cases cited therein.^*)

In the case at bar it must be clearly apparent that the fourth element mentioned above was entirely lacking in this case. There is no evidence or claim that this plaintiff, Hill, or his agent, knew that the Abernathy Furniture Company had a judgment or an execution against J. J. Powell, or that the sheriff,. Van Sandt, had such an exepution; and there is no-evidence tending to show that this plaintiff, Hill, or his agent, made any statement, that they are claimed to have made, with the intention of inducing the sheriff, or Abernathy & Co., or anybody else, to levy upon this stock of furniture to collect a debt owing by J. J. Powell & Co.

“In general, where there is nothing to show that the representation was intended to be acted upon as a statement of the truth, or that it was tantamount to a promise or agreement that the declaration made is true, so as to amount to an undertaking to respond in case of falsity, the party making is not estopped from proving the truth.” (Bigelow, Estop. 486.)

In the case of Carithers v. Weaver, 7 Kas. 125, Brewer, J., in delivering the opinion in that case, gives the following definition :

‘ ‘ Estoppels in pais are upheld to prevent gross injustice in cases where one party having rights in property, by representations or conduct in reference thereto, fraudulently induces another to part with value for that property, and thereafter insists on those rights to deprive the latter of both value and property. But, where the latter party loses nothing by permitting the former to assert his legal rights, the reason for upholding estoppel fails.”

In the case of Palmer v. Meiners, 17 Kas. 483, Chief Justice Horton, in delivering the opinion in this case, cites the above language in the case of Carithers v. Weaver, and says :

“As Claflin and Thayer were never influenced or induced to part with their goods on such alleged statement, and never gave any credit or extension of payment thereon, the reason for holding Mrs. Meiners estopped thereby fails.”

In the case at bar there is nothing in the record to show that Hill, or his agent, made any statements or admissions for the purpose of inducing, or in any way induced or attempted to induce this defendant, Van Sandt, or the Abernathy Furniture Company, or their agent, or anyone else, to extend any credit to J. J. Powell or to Powell & Co., by reimesenting to them that said J. J. Powell or said J. J. Powell & Co. were the owners of the goods levied upon in this case. In this case it was admitted that the debt upon, which this execution issued was not contracted under this last arrangement, and it clearly appears that it was for goods bought by said J. J. Powell when he was in business for himself, before he burned out.

Plaintiff in error in this case complains because a portion of the instructions was given during the argument of counsel. So far as this case is concerned, it is not necessary to decide whether that is error or not.

The defendant in error in this case says that—

“Hill, by his conduct, induced the Abernathy Furniture Company to go to the expense of obtaining a judgment, issuing and levying an execution, and he is estopped from asserting title to the goods levied upon, even if the debt to Abernathy had accrued prior to said conduct.”

We think this contention is not sustained by the authorities. (Bigelow, Estop. 487.)

The plaintiff in error raises the point that the representations were not made to this defendant, Van Sandt, but to the judgment-creditor. Having decided that the doctrine of estoppel does not apply to the facts in this case, it is not necessary to decide this question.

The question which should have been submitted to the jury in this case is, Was Luther Hill the owner of the goods? And he was not estopped in this case from showing that he was , the owner by any representations which the evidence shows were made by his agent, Denison.

The judgment of the district court will be reversed, and the cause remanded for further proceedings.

All the Judges concurring.

* But see Bigelow on Estoppel, 5th ed., p. 570.- — Reporter.