Allum v. Perry , 1878 Me. LEXIS 75 ( 1878 )

Appleton, O. J.

It was in proof from both parties, and without contradiction, that the note in suit was given in part payment of a horse, sold by the defendant to the plaintiff; that, shortly after it was given, the plaintiff sold the same to Daniel Page for value ; that, before the sale, Page called on defendant to inquire about the note, who said'it was good and would be paid; that, before its maturity, Page sold the note to Samuel D. Hurd, for whose benefit this suit is prosecuted; that Hurd, before purchasing, called on the defendant, who reiterated his previous assurances that the note was good and would be paid, and that thereafter he purchased the same.

The defendant offered to show there was fraud in the sale of the horse, which the court excluded, ruling that the defendant, by his acts and declarations, was estopped from setting up the defense of fraud.

The assignment and delivery of a promissory note before maturity, without indorsement, gives to the assignee only the rights of the payee. Haskell v. Mitchell, 53 Maine, 468. It is so, though taken in good faith and for value. Lancaster National Bank v. Taylor, 100 Mass. 18.

The only ground upon which the plaintiff in interest can recover is that the defendant, by his acts and declarations, is estopped to set up that there was fraud in the inception of the note. Upon this branch of the case, the instructions given were too broad.

It does not appear that the defendant knew that the plaintiff in interest, or his assignor, had any intention of purchasing the note in suit, or would be likely to act upon any statements he might make. He is not to be estopped by casual answers made to persons who have no interest in the subject matter of their inquiries. “ Certainly,” remarks Metcalf, J., in Pierce v. Andrews, 6 Cush. 4, “no one can be estopped by a deceptive answer to a question, which he may rightfully deem impertinent and propounded by a meddling intruder.”

It does not appear that the plaintiff in interest was induced to purchase in consequence of what the defendant said ; and if not, there would be no estoppel. To create an estoppel in pais, the declarations or acts relied upon must have induced the party seeking to enforce an estoppel to do what resulted to his detriment, and what he would not otherwise have done. If his action was not changed by what was said he has no cause of complaint.

Exceptions sustained.

Walton, Daneorth, Virgin, Peters and Libbey, JJ., concurred.