Opinion
No. 3052.
October 15, 1927.
Lyons Orton, of Seattle, Wash., for plaintiff.
O.D. Cochran, of Nome, for defendant.
The question arising on the pleadings is, then: Does the answer show that plaintiff should be estopped from making claim of, or prosecuting its action against, defendant for goods sold and delivered? We think it does, and that the demurrer should be overruled.
Plaintiff relies principally upon the case of Union Mutual Life Ins. Co. v. Mowry, 96 U.S. 544, 24 L.Ed. 674, in support of its demurrer. We find therein expressed an exception to a general rule in the following language:
"The only case in which a representation as to the future can be held to operate as an estoppel is where it relates to an intended abandonment of an existing right, and is made to influence others, and by which they have been induced to act."
The representations here seem to fall within the exceptional rule. By receiving part payment of the moneys due it from the Keewalik Mining Company, the plaintiff would seem to have ratified the agreement made by defendant and the Keewalik Mining Company, if the delivery of the personal property to the defendant was not also a ratification. If so, the plaintiff must look to the Keewalik Mining Company, and not to the defendant, for the value of its property. "Bona fides non patitur ut bis idem exigatur." Good faith does not allow us to demand twice the payment of the same thing. And it has been held that where a widow, on a sale of her husband's estate, authorized the salesman to announce, "as he did, to the attending crowd, that she would not claim dower against any person who should become the purchaser, * * * although her declaration to the bidders did not legally alienate her dower, yet, the sale being made on the faith of it, she is equitably estopped from asserting dower against the purchaser" — or, we add, sue for the value of the dower. Connolly v. Branstler, 3 Bush (Ky.) 702, 96 Am. Dec. 278. We see little, if any, difference in principle between the case last cited and the case at bar.
Inasmuch as an estoppel must be pleaded in order to avail, and inasmuch as an estoppel "is only a rule of evidence," and not a cause of action, and because there was privity of estate, and the estoppel, if any, reciprocal, we think the demurrer should be, and the same is hereby, overruled.