Plumb v. . Cattaraugus Co. Mutual Insurance Company. , 18 N.Y. 392 ( 1858 )

As no point was made upon the trial or upon this appeal that the agent Ide was not clothed with all the power which he professed to have, it may be assumed that what he did in making the survey and measurements and in filling out the application was strictly within the line of his duty as surveyor and agent of the company. If, therefore, he acted within the scope of his authority in making these surveys and measurements and in preparing the applications, I do not see why the question is not the same in principle as if the same thing had been done by the company itself. Suppose an individual insurer had himself assumed to make the survey and measurements, and, as in this case, had filled up a blank application and had represented to the applicants that his survey and measurements were correct, and that upon the faith of such representations, and with no knowledge of the facts themselves, the insured had signed the application and thus made the statements their own. Although they had thus been led into a warranty of what was not true, they could not, undoubtedly, change the contract by parol testimony. The writing must still be held to express the contract between the parties. And neither party can insist that the contract is other than what the writing expresses.

But when the party through whose acts and representations the other party was induced to enter into the contract claims the right to show that the facts were different from what he had represented them to be, for the purpose of showing a breach of the warranty, and thus avoiding what would otherwise be a binding contract, and escaping its obligations, I cannot discover why the doctrine of estoppel may not justly be applied to him, and he be precluded from denying what he once asserted. It presents, I think, the precise case for the application of the doctrine ofestoppel in pais, as defined in the cases. Lord DENHAM, inPickard v. Sears (6 Ad. Ell., 475), says: "The rule of law is clear that where one by his words or conduct willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring a different state of things as existing at the same time."

Substantially the same rule, but in still more explicit terms, was laid down by BRONSON, J., in Dezell v. Odell (3 Hill, 215). "It must appear: 1. That he has made an admission which is clearly inconsistent with the evidence which he proposes to give, or the title or claim which he proposes to set up; 2. That the other party acted upon the admission; and, 3. That he will be injured by allowing the truth of the admission to be disproved." The same rule was laid down by NELSON, J., in Welland CanalCompany v. Hathaway (8 Wend., 483). The rule thus laid down precisely fits this case, and surely the equities of a cause never called more persuasively for the application of the rule than they did in this case. I think, therefore, the court were right in ordering a verdict for the plaintiffs upon the evidence, and the judgment of the Supreme Court should be affirmed.

JOHNSON, Ch. J., DENIO and STRONG, Js., dissented for reasons stated in the opinion of the latter in the last preceding case.

Judgment affirmed.