THE LAW OF ESTOPPEL

BY

MISREPRESENTATION.

CHAPTER I.

INTRODUCTION.

Lord Coke divides estoppel into (1) Estoppel by record; (2) Estoppel by writing (or deed); and (3) Estoppel in pais (Estoppel by matter in the country). We have the same subdivisions to-day, but the third class has very largely changed its character and ought to change its name. Of it Lord Coke said: 2

"By matter in pais, as by liverie, by entry, by acceptance of rent, and by acceptance of an estate, as here in the case that Littleton putteth; whereof Littleton maketh a speciall observation, that a man shall be estopped by matter in the countrey without any writing."

Such estoppels are now said to be obsolete, but that is not quite the fact. It may be that livery of seizin is out of date; that estoppel will now but seldom arise "by entry;" and that "acceptance of an estate" will more frequently operate as an election or a waiver than as an estoppel. Nevertheless it may not only be said that "acceptance of rent" as an estoppel is still familiar to us, but that the principle of estoppel which underlies all of Lord Coke's instances is of ever-growing importance. For they may all be included under Mr. Bigelow's title "Estoppel by Contract," which embraces

"All cases in which there is an actual, or virtual, undertaking to treat a fact as settled, so that it must stand specifically as agreed."4

1 The phrase "estoppel in pais" has yet the value of marking off estop pel by record and estoppel by deed, from all the heterogeneous cases which are not these. It was never intended to cover cases of estoppel by misrepresentations; and such cases have only been assigned to it

because they were less allied to either of the other two categories.

2 Upon Litt. 352 (a). And see Lyon v. Reed (1844), 13 M. & W. 309; 13 L. J. Ex. 377.

3 Cababé on Estoppel, p. 4.

4 Bigelow on Estoppel (5th ed.), 455.

At the present day a vendor, if by his deed he have assumed to convey an estate in fee, is estopped from asserting otherwise. In Lord Coke's time the deed would have had the same effect; and, if the conveyance had been by parol, accompanied by livery of seizin, there would have been the same estoppel. Estoppel "by liverie," therefore, is clearly within the class estoppel by contract, as described by Mr. Bigelow. The other three instances mentioned by Lord Coke proceed upon identical principles.

Estoppel in pais, then, or rather the principle connoted by that expression, is far from obsolete. The estoppel of a bailee to deny the bailor's title; the estoppel of an acceptor of a bill to deny the signature of the drawer; the estoppel of a tenant to deny the estate of the landlord; and scores of other cases depend upon it.

There has been a still more remarkable inclusion under the title estoppel in pais; one wholly unknown in Lord Coke's time, namely, estoppel by misrepresentation. Estoppel of this sort does not in any way depend upon contract, and cannot claim sufficient kinship with Lord Coke's four instances to merit inclusion with them in his class "Estoppel in Pais." Nevertheless, faute de mieux, there it has gone.

SUBDIVISIONS OF ESTOPPEL IN PAIS.

Mr. Bigelow, the principal text writer upon the subject of estoppel, retaining the phrase "estoppel in pais," subdivides it into (1) estoppel by contract; and (2) estoppel by conduct.' Estoppel by conduct he subdivides into: (1) estoppel by misrepresentation; (2) estoppel by negligence; and (3) estoppel by waiver.

The present work does not treat of estoppel by record; nor of estoppel by deed; nor yet of estoppel by contract. Of estoppel by negligence, apart from misrepresentation and as an instance of it, it denies the existence. And estoppels by waiver are dismissed with Mr. Bigelow's remark that

"It appears to be little, if anything, more than giving a new name to call them estoppels."6

1 Bigelow on Estoppel (5th ed.), 20,

453, 459, 556.

2 Id., p. 556.

* Id., p. 653.

4 Id., p. 660.

5 See ch. IX.

Bigelow on Estoppel (5th ed.).

p. 660.

The volume, then, is limited to estoppel by misrepresentation. Mr. Bigelow's classification makes estoppel of this sort a subdivision of estoppel by conduct. But in such a division of the subject, the class (estoppel by conduct) is narrower than the sub-class (estoppel by misrepresentation);1 and necessitates the re-subdivision of the sub-class (estoppel by misrepresentation) into misrepresentation by language, and misrepresentation by conduct; thus reproducing estoppel by conduct in the second analysis of itself. It would be better to divide estoppel in pais into estoppel by contract, and estoppel by misrepresentation. Both of these, then, may be respectively subdivided (if thought advisable) into contract and misrepresentation (1) by language, and (2) by conduct.

The classification of estoppels in pais suggested in Smith's Leading Cases- estoppels by statement, by conduct, and by negligence is defective (1) because it fails to recognize this main division into contract and misrepresentation, in both of which "statement" is but the expression of that which "by conduct" is implied; and (2) because, concurring with Mr. Bigelow, the author regards estoppel by negligence as something which may exist apart from misrepresentation. He is, however, as unable as Mr. Bigelow to give an instance of it—indeed does not try to do so.

Another subdivision (not heretofore distinctly made) is arrived at by distinguishing between cases in which the misrepresentation is made by the estoppel-denier himself (personal misrepresentation); and those in which the misrepresentation has been made by some third person, the estoppel-denier having but furnished the occasion, or opportunity, for it having done that which was necessary to make it credible. This latter class may be termed assisted misrepresentation. The present writer believes that the phrase will be found to be of much service.

Lord Coke tells us that

DEFINITION.

"Estoppel' cometh of the French word estoupe, from whence the English word stopped; and it is called an estoppel, or conclusion, because a man's own act, or acceptance, stoppeth or closeth up his mouth to allege or plead the truth.”

1 For misrepresentation may be by conduct, or by direct assertion.

2 10th ed. 834.

Estoppel in pais has been well defined to be:1

"An impediment or bar, by which a man is precluded from alleging, or denying, a fact, in consequence of his own previous act, allegation or denial to the contrary."

Mr. Bigelow describes estoppel as follows:'

"Estoppel in pais arises (1) from contract; (2) independently of contract, from act or conduct, which has induced a change of position, in accordance with the real or apparent intention of the party against whom the estoppel is alleged; and it designates some present or past fact, fixed by or in virtue of the contract, or of the act or conduct in question."

Of this it may, respectfully, be said that it hovers between a definition and a statement of conditions: that as the latter it is inadequate; and that for a definition the one above quoted is sufficient.

Mr. Cababé's definition is as follows: 3

"An admission of a state of facts, or of fact irrespective of its truth, which, for the purpose of determining their rights and obligations arising out of a given transaction, the parties thereto are entitled to exact from one another, or one of them is entitled to exact as against the others, or other."

And in Smith's Leading Cases estoppel is said to be

"An admission, or something which the law treats as an admission of an extremely high and conclusive nature."

The present writer sees no good reason for describing an estoppel as an "admission." An impediment (which prevents denial of an alleged fact) may be equivalent in effect to an admission; but it is not an admission. Inability for any reason to prove a fact may be equivalent, for practical purposes, to an admission that it is not a fact; but it would be altogether misleading so to describe it. The word, moreover, will not fit. A. misrepresented a fact and is estopped cannot well be translated into A. admitted a fact in a highly conclusive fashion. Mr. Cababé met with much embarrassment in his endeavor to effect the change; and Mr. Bigelow, who introduced it, has abandoned it."

1 Jacob. And see Bouvier; also Stephen on Pleading (7th ed.), 181. 2 On Estoppel (5th ed.), 463.

3 On Estoppel, 108. And see Everest & Strode on Estoppel (p. 2) to the same effect.

4 10th ed., vol. 2, 726.

5 Mr. Bigelow in the third edition of his work defined estoppel "as an express or implied admission," etc., and this was adopted by some of the American judges. See Zuchtmann v. Roberts (1871), 109 Mass. 53, and

cases referred to in Bigelow on Estoppel (5th ed.), 453, note 1. See also the language of Bramwell, L. J., in Simm v. Anglo-American Co. (1879), 5 Q. B. D. 202, otherwise and probably more accurately reported in 49 L. J. Q. B. 396, and of Bayley, J., in Heane v. Rogers (1829), 9 B. & C. 577, quoted in Richards v. Johnston (1859), 4 H. & N. 663; 28 L. J. Ex. 322. In his later editions Mr. Bigelow has discarded the language.

JUSTIFICATION OF ESTOPPEL.

Adopting then the definition of estoppel as "an impediment or bar," which has the effect of precluding a man from "alleging or denying a fact," the question naturally arises: Why should any one ever be so precluded? Surely the facts ought to be known, and should govern the rights of the parties.

Suppose, however, that goods are delivered to a warehouseman for storage; and when the bailor requires delivery the warehouseman refuses, upon the ground that the bailor cannot prove a clear title to the goods. One sees at a glance that the warehouseman should not be permitted to take such a position; and the reason really is that, for the purposes of the bailment, the title of the bailor has been assumed, and impliedly agreed to. This is estoppel by contract; and it is based upon the soundest equity, which says that not only, or indeed mainly, are the facts as they exist those which govern the relations of the parties, but those chiefly which the parties have assumed and agreed upon.

Again, suppose that the owner of property stands by and allows it to be sold by another person to one unaware of the real state of the title; the owner is and ought to be estopped from asserting his position. He has misrepresented, or rather contributed to the misrepresentation of the facts, and is estopped, therefore, from asserting them. This is estoppel by misrepresentation. It is the sort of estoppel treated of in the present volume.

In the earlier years of the development of the law of estoppel by misrepresentation (not so long ago), all this was little understood, and the phrase "estoppels are odious" represented the disinclination of the courts to prevent the assertion of the real facts. The language persists in even some of the more recent cases. In 1853 Lord Campbell, speaking of estoppel by misrepresentation, said:1

"Like the ancient estoppel, this conclusion shuts out the truth, and is odious, and must be strictly made out."

1 Howard v. Hudson (1853), 2 E. & B. 10; 22 L. J. Q. B. 344, quoted by Colt, J., in Andrews v. Lyons (1865), 93 Mass. 350. In Franklin v. Merida (1868), 35 Cal. 558, it was said that "the doctrine is a harsh one, and is

never to be applied except when to allow the truth to be told would consummate a wrong to the one party or enable the other to secure an unfair advantage."