Lubric Oil Co. v. Drawe

SULLIVAN, PJ.

1. Where argument that verdict was manifestly against weight of evidence was unsuccessfully urged by appellant on motion for new trial, question of weight of evidence not subject of inquiry in proceeding in error subsequently prosecuted.

2. In order to constitute estoppel by conduct there must be misrepresentation of facts or willful concealment of them, made with knowledge of facts to one ignorant of them with intention of having such other party act on them, and such party must have been thus induced to act (citing Words and Phrases, Second Series, “Estoppel in Pais.”)

3. Estoppel applies only to parties and privies, and. does not extend to stranger to transaction.

4. Where controlling question in case relates to estoppel, court will look to pleadings to determine whether constituent elements of estoppel appear there, since such elements must appear with respect to pleading as well as evidence.

5. Answer alleging that plaintiff assisted in preparing schedule of assets and liabilities of answering defendant at time of sale of its stock without including any claim for services rendered in negotiation of such sale, and that plaintiff was thereby estopped from asserting any claim against such answering defendant, held not to plead principle of estoppel.

6. Misrepresentations and concealment relating to conversation between plaintiff and representatives of certain company cannot raise estoppel as to another company, notwithstanding that first company purchased stock or assets of second, and that at time of conversation companies were, practically speaking, one and the same, since legally speaking, they were separate and distinct legal entities.

7. Misconduct of counsel must be gross, in order to constitute “professional misbehavior.”

8. Allowing argument of counsel in which he was alleged to have undertaken to distort evidence held not prejudicial, in view of presumptions that jury heard and remembered positive testimony relating to issue, which was as to who wrote certain minutes of board of directors of company.

(Vickery, and Levine, JJ., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.