Whitcomb v. Cummings ( 1894 )

The action in covenant by the plaintiff against the Starkey heirs was not an election by him to treat the defendant's assignee as the lessee, and did not operate to release the defendant from his covenants in the lease. If that action had been brought by the plaintiff of his own motion, it might perhaps have had the effect claimed for it by the defendant; but the facts clearly show that it was brought at the defendant's request and upon his promise to stand behind it, and that it was solely for his benefit. In the light of these facts, the plaintiff must be regarded as having been the nominal party merely, and the defendant the real party. As such, the attempt of the defendant to now set up the technical advantage obtained by him because the action was in the plaintiff's name, is unconscionable and wholly indefensible. The doctrine of equitable estoppels applies to him with full force. The principle is, that where one party has by his representations or his conduct induced the other party to a transaction to give him an advantage which it would be against equity and good conscience to assert, he will not in a court of justice be permitted to avail himself of that advantage. Insurance Co. v. Wilkinson, 13 Wall. 222, 233; Drew v. Kimball, 43 N.H. 282, 285, — 80 Am. Dec. 163, and note; Horn v. Cole,51 N.H. 287, 292; N.Y. Rubber Co. v. Rothery, 107 N.Y. 310, — 1 Am. St. Rep. 822, and note; Cowles v. Bacon, 21 Conn. 451, — 56 Am. Dec. 371, and note; Caldwell v. Auger, 4 Minn. 217; Stewart v. Commissioners,45 Kan. 708, — 23 Am. St. Rep. 746.

The further claim of the defendant, that the plaintiff's only remedy is upon his collateral promise to stand behind the plaintiff in the Starkey suit, is equally indefensible. The fair and reasonable construction of the promise is, that the defendant would indemnify and save harmless the plaintiff from the costs of that suit; and we so construe it.

Judgment on the report for the plaintiff.

All concurred.