Coleman v. Bean

14 Abb. Pr. 38

Opinion

By the Court.

Footnotes

•

*—Hilton, J.

The instrument sued upon was an undertaking in the form required by statute to be given on the discharge of an attachment (Code, §§ 240, 241), and on account of the deliberation implied by its nature, should be judged by the rules of law applicable to instruments under seal.

It recited, that in a certain action against the Galveston, Houston, & Henderson Railroad Company, an attachment had been issued, and an application was about being made by the company to discharge the same. The defendants thereupon, pursuant to the statute in such case made and provided, in consideration of one dollar to each in hand paid, undertook in the sum of $1,300 that they would pay on demand, to the plaintiff, the amount of the judgment which might be recovered against the company in that action, not exceeding the sum specified.

These recitals estopped the defendants, and the judge at the trial very properly refused to allow evidence tending to contradict them for the purpose of defeating the instrument. (Wood a. Chapin, 13 N. Y., 509 ; Decker a. Judson, 16 Ib., 439; Rowntree a. Jacob, 2 Taunt., 141; McCosky a. Leadbeater, 1 Kelley (Ga.), 551; Tubbs a. Lynch, 4 Harring, 521; Vangine a. Taylor, 18 Ark., 65 ; Farrington a. Barr, 36 N. H., 86; Belden a. Davies, 2 Hall, 433, 447, and cases cited; Hayes a. Askew, 5 Jones’ Law R. (N. C.), 63 ; Sinclair a. Jackson, 8 Cow., 543, 585 ; Oakley a. Boorman, 21 Wend., 588 ; Fisher a. Smith, Moore R., 569 ; Jackson a. Alexander, 3 Johns., 484, 493; Barnum a. Childs, 1 Sandf., 58.) The rule being, that where the recitals in the instrument are material, the party shall be estopped (Shelly a. Wright, Willes R.); and here they were certainly material, as they constituted the very foundation for the undertaking. (2 Leon., 11.) Its production, therefore, at the trial, was sufficient evidence of the facts recited in it. (Shaw a. Tobias, 3 N. Y., 188 ; see, also, 1 Phill. on Ev. by Edwards, 471; 4 Kent, 260, note; 2 Black., 295 ; Goodtide a. Bailey, Comp., 601; Nash a. Turner, 1 Esp., 217; Bowman a. Taylor, 2 Ad. & E., 278.) In the latter case, the instrument recited that the plaintiff had invented a certain improvement in the construction of looms, for which he had obtained letters-patent, and had agreed to permit the defendants to have the benefit and use of the invention for a certain price to be paid for each loom. The action was brought to recover the price which the defendants thus agz-eed to pay, and the plea interposed by way of defence was, that the plaintiff was not the true inventor of the improvement; but upoiz demurrer the cozzrt held that the defendants were estopped by the recital, and could not be pez-mitted to deny what they had asserted by their solemn instrument. (Lainson a. Treznore, 1 Ad. & E., 792.)

The offer at the trial to show fraudulent representatiozzs made to the defendants by the secretaz’y of the company, to induce the defendants to sign the undertaking, was also properly rejected by the judge, as it was not pretended that the plaintiff in any way participated in making them, or knew of their having been made. The secretary, in procuring the undertaking, acted in behalf of the company, and his representations while so acting could not operate to the plaintiff’s injury, unless the plaintiff was shown to have been privy to the deception alleged to have been practised.

Judgment affirmed.

Present, Daly, F. J., Beady and Hilton, JJ.