Opinion
September Term, 1863
F.G. Wicker, for the appellants.
A.M. Bingham, for the respondent.
No written opinion was delivered at the general term of the Supreme Court, when the judgment given in favor of the plaintiff, at the circuit, was reversed and the order made for a new trial, with costs to abide the event.
The judges at the general term must have been of the opinion that the contract of the 29th day of July, 1857, was not binding upon the plaintiff, because she did not sign it, or that the defendants could not avail themselves of it, for the reason that they did not measure the land, mentioned in it, "within ten days" after the date thereof.
The plaintiff could not say that any part of the contract was not binding upon her, for her action was based upon it, and she could not recover without giving it in evidence.
The defendants were not estopped from claiming that the quantity of land which they had conveyed to the plaintiff at $60 per acre, was twenty-six acres and ninety-seven one hundredths of an acre, instead of twenty-four acres, simply because they omitted to measure the same "within ten days" from the date of the contract. For if there had been less than twenty-four acres of the land the plaintiff would not have been estopped from showing that fact and claiming $60 per acre for the deficiency.
The true interpretation of the contract, when read in the light of the surrounding circumstances, as it should be, is, the defendants agreed to pay the plaintiff $1800 for her interest in the property and estate of John H. Jones deceased, and she was to take in part payment thereof a piece of land at $60 per acre, that the defendants conveyed to her, which they estimated to contain twenty-four acres, and which was to be measured "within ten days," from the date of the contract; and the defendants were to give their promissory note to the plaintiff for "the balance" of the $1800, "whatever it might be," payable on the 1st of October, 1858. The time within which the land was to be measured was not so material a part of the contract as to make either party lose on the question of quantity, if not performed in respect to such time. If there had been but twenty acres of the land, the defendants could not have compelled the plaintiff to allow them more than $1200 therefor towards the $1800, on the ground that the land was not measured "within the ten days" specified in the contract. Hence the defendants were not estopped from claiming pay for the excess of the land over twenty-four acres.
The general rule is, that one party is not estopped unless the other is. In other words, an estoppel must be reciprocal and binding upon both parties. ( The Welland Canal Co. v. Hathaway, 8 Wend. 480; Green v. Russell, 5 Hill, 183.)
The point that the defendants can not be allowed for more than twenty-four acres of land, because the land is described in their deed to the plaintiff by metes and bounds, and as "containing twenty-four acres be the same more or less," is untenable; for the reason that the contract for the payment of the $1800, for the plaintiff's interest in the property and estate referred to, provides for ascertaining the number of acres of the land conveyed, and for an allowance therefor to the defendants, by the acre. The contract, therefor, is not controlled or rendered nugatory in any respect by the deed.
For these reasons I am of the opinion the judge at the circuit properly allowed the defendants for the excess of the land at $60 per acre over and above the twenty-four acres; and that the order, made at the general term of the Supreme Court, granting a new trial, should be reversed, and the judgment given at the circuit affirmed with costs.
All the Judges concurring,
Judgment affirmed.