#### Trowbridge and another vs. Matthews, impleaded, etc.

*Estoppel in pais.*

Where plaintiffs had furnished machinery to a mill, and acquired a lien foi the price upon the interest which one J. had in the mill under a con tract of sale, if they represented to M., who had purchased J.’s inter est, that the latter owed them little or nothing for said machinery and thus induced M. to pay over to J. the balance of the purchase money (exceeding the amount of their claim), they would be estopped from enforcing their lien as against M.; and it was error to reject evi dence tending to show those facts.

APPEAL from tbe Circuit Court for *Fond du Lac*County.

Tbe defendant *Matthews*appealed from a judgment against bimself and bis co-deféndant Jackson. Tbe case is stated in tbe opinion, so far as is necessary to explain tbe decision of tbis court.

*Grilled, Pier & Bass,*for appellant.

[No brief.]

*Knowles & Babcock,*for respondents,

contended, upon tbe evi dence, that tbe representations alleged to bave been made by one of tbe plaintiffs to *Matthews,*upon wbicbtbe latter claimed an estoppel, were made in fact *after Matthews*bad not only be come botb legal and equitable owner of tbe mill property on wbicb a lien is bere sought to be enforced, but bad also paid all tbat was going to Jackson; and sucb representations could not, therefore, operate as an estoppel. 6 Pick., 455; 3 Hill, 225 ; Hill & D. Supp., 90; 4 E. D, Smith, 296; 10 N. Y., 402.

[Tbe other questions, argued by counsel are not passed upon by tbe court.]

*657LyoN, J.

The plaintiffs constructed, and placed in a mill, erected and occupied bj tbe defendant Jackson, a steam engine, boiler, and perhaps some other machinery, to be used in propelling such mill. Jackson held the mill property at that time under a contract with the owner for the purchase thereof, and the plaintiffs performed such work under a contract therefor with Jackson. After such work was completed, the defendant *Matthews*purchased Jackson’s interest in the mill property, and took a conveyance thereof from the original owner.

The plaintiffs filed their petition for a lien pursuant to chapter 158, E. S., and the amendatory acts; and this action was brought to enforce such lien for the unpaid balance due them from Jackson on account of such work, upon the interest which Jackson had in the mill property when the work was performed. The defendant Jackson made default to such action, but the defendant *Matthews*answered, among other things, that while negotiating with Jackson for the purchase of the mill, and before making any payment to him thereon, and after the demand of the plaintiffs in the action had fully accrued, the plaintiffs, with a fraudulent intent to injure Matthews, represented to him that Jackson was not indebted to them, or, at most, only a few dollars; and that relying upon such representation he immediately completed the purchase of the property, and paid Jackson the unpaid purchase money therefor, amounting to between foru’ thousand and five thousand dollars, which, but for the aforesaid representation made by the plaintiffs, he would not have done.

Erom a judgment for the plaintiffs enforcing a lien upon Jackson’s former interest in the mill property, the defendant *Matthews*has taken an appeal.

On the trial of the action (which was by a jury), testimony was offered at different stages of the trial, and in a variety of forms, tending to prove the allegations in the answer above stated; but the same was repeatedly objected to by the plaintiff, and such objections were uniformly sustained by the court.

*658Those allegations of tbe answer, if true, are a complete defense to tbe action so far as *Matthews*is concerned. If tbe plaintiffs made snob representation to *Matthews*at tbe time and under tbe circumstances therein stated, they are estopped to assert tbe contrary as against him, after be has purchased tbe mill property and paid tberefor a large amount of money on tbe faith thereof,

Tbe offered testimony should have been received, and its rejection by tbe circuit court was clearly an error which is fatal to the judgment. We are entirely unable to comprehend upon what principle tbe objections thereto, and tbe ruling of tbe court sustaining tbe same, were predicated.

We have not overlooked tbe fact that considerable testimony was given on the trial tending to prove these allegations of the answer. But it is perfectly obvious that the appellant has not had a full opportunity to investigate the same before the jury. Only such testimony was received relating to the defense of estoppel as the plaintiffs chose to allow. We cannot say that the appellant was permitted to give to the jury the whole of the conversation which be bad with tbe plaintiff *Horace*Trow-bridge, relative to Jackson’s indebtedness to the plaintiffs. To the question put to the appellant in his own behalf, when on the stand as a witness, “ State tbe whole of tbe conversation between you and ibowfo’id^eatthemill,” an objection by plaintiff was sustained. And yet the testimony which was received tended to show that this was one of the conversations in which it is alleged the plaintiffs told the appellant that Jackson owed them but little or nothing, and that at the time of such conversation the appellant had in his hands three thousand or four thousand dollars of the purchase money of the mill property, •which he afterwards paid to Jackson.

It is unnecessary to consider the other questions discussed in ,.the argument.

*By the Court.*— The judgment of the circuit court is reversed, ¡.and a *venire de novo*awarded.