Muslow v. Charles B. Varney Co.

Peaslee, J.

It is admitted that there was sufficient evidence of a breach of contract by the plaintiff. He did not order out the second car within the agreed time. But it is insisted that the defence is not open here because the defendant is estopped to set it up. This claim is based upon a letter written by the defendant to counsel for the plaintiff in which another breach is stated as the cause for a refusal to deliver the second car. If this letter could be treated as the foundation for an estoppel which would bar all other defences and permit the plaintiff to repover as though they did not exist, there is no evidence in the case to show that either the plaintiff or his counsel took any action or changed any position in reliance upon the defendant’s assertion. In this state of the evidence it is manifest that the plaintiff’s motion for a directed verdict was properly denied. Cobb v. Morrison, ante, 74. The burden was upon the plaintiff to prove the estoppel, and if his reliance upon the letter might be inferred from his subsequently bringing suit, that was not the only conclusion that could be reached, especially when the plaintiff failed to testify to that effect. Mechanics Sav. Bank v. Feeney, ante, 267. At the most, he merely made a case for the jury upon this question.

Exception overruled.

Walker, J., was absent: the others concurred. '