Boynton & Moseley v. Braley , 54 Vt. 92 ( 1881 )

The opinion of the court was delivered by

Veazey, J.

I. ' This case was tried by the court without a jury. Plaintiffs’ counsel say that the defendant waived his lien by what he said to Bacon and the appraisers. This claim is answered by the finding of the court that the defendant did not Icnow he had a lien. In order to constitute a waiver, there must be an intentional relinquishment of a known right. See Bigelow on Estoppel and cases there cited upon this subject.

II. Is the defendant estopped from asserting his right ? One of the essential elements to an estoppel by conduct is that the party to whom the representation was made must have been ignorant of the truth of the matter. Therefore there was no estoppel as between Bacon and the defendant, as Bacon knew the truth. Moreover there was no privity between Bacon and the purchasers at the execution sale in whose right these plaintiffs stand. The defendant was not present at the execution sale, and never disclaimed his right to the purchasers ; and what he said to Bacon and the appraisers never came to the purchasers’ knowledge. Therefore there is no ground of estoppel by reason of any representation of the defendant. The only ground left is that he did not attend the sale and there assert his right. Silence is good ground of estoppel when the other essential elements exist; that is, it may be a method of concealment of a material fact when there is a duty to speak; and may be as misleading as a representation. Cady v. Owen, 84 Vt. 598. But there is no estoppel where the silence is the result of ignorance of the facts, unless the party is guilty of gross negligence in not knowing the facts, of which there is here no valid ground of claim. In this case the defendant was ignorant of his right. He had no intention of misleading by his failure to assert his right. It does not appear that the purchasers at the sale changed their conduct by reason of the defendant not attending the sale and giving notice of his lien. It is not even clear that he knew that any of the animals attached were the descendants of the stock upon which his lien originally existed. He had not seen the animals. He had only seen a list of them. Upon seeing the list after the attachment, he disclaimed any ownership, in the honest belief he had none; but this was never communicated to the purchasers.

In reviewing alleged errors of the County Court we cannot assume that the purchasers were induced to purchase by reason of the defendant not attending the sale and claiming his lien. In order to entitle the excepting party to a reversal, error must appear on the record.

The rule of estoppel relating to negotiable instruments, which is one class of the cases to which we are referred, stands on peculiar ground, on account of the law relating to these instruments being a part of the Law Merchant. Bigelow on Estoppel, 551.

We think no error appears in the judgment rendered, and the same is affirmed.