#### Alexander Gillespie *et al.*plaintiffs and appellants, *vs.*Alexander Carpenter, defendant and respondent.

The seller by weight of merchandize in bulk, who has received its price accord- ' ing to the weight specified in weigher’s certificates furnished by him to the buyer, is estopped from disputing the accuracy of such certificates and recovering for any excess of weight of such merchandize beyond that specified therein, after such buyer, relying on the accuracy of such certificates, has resold such merchandize by weight and received its price according to the weight therein mentioned.

(Before BoSWOBTH, Oh. J. and Mqkcbief and White, JJ.)

Heard May 14,1863;

decided May 30, 1863.

The plaintiffs, Alexander Gillespie, James Gillespie, John Dean, and James Dean, Jr. claimed, in the complaint in this action, payment for a quantity of wheat sold and delivered under several contracts specified therein, alleged to be not fully paid for by the defendant, in addition to one half of the expense of weighing. The answer denied that any more wheat was delivered than was paid for by the defendant, and that the plaintiffs paid the weigher’s fees claimed in the complaint; and averred that the defendant had shipped all the wheat to his principal, in France, as, of and for, the quantity paid for by the defendant.

The cause came on to be tried before Chief Justice Bosworth and a jury, on the 26th day of Movember, 1862. The facts of the case are stated in the opinion of Moncriee, J. The court dismissed the complaint, when the plaintiff rested, on the defendant’s motion, and ordered the exceptions taken - to be heard in the first instance at the general term.

*J. S. McCullough,*for the plaintiffs, appellants.

I. The plaintiffs were not estopped from showing, at the trial, that they had delivered to the defendant the amount of wheat claimed in the complaint to have been unpaid for by the defendant.

I. Estoppels are regarded with strictness. (1 *Greenl. Ev.**66§ 22. *Leicester*v. *Rehoboth,*4 *Mass. R.*180. *Bridgewater*v. *Dartmouth, Id.*273. Owen v. *Bartholomew,*9 *Pick.*520.)

2. The doctrine of estoppel tA *pais*has the following distinctive and necessary properties, none of which are presented by the present cause, to wit: (1.) Fraud. *(Hill*v. *Epley,*31 *Penn. R.*331.) (2.) Equal means and knowledge. *(Parker*v. *Chambers,*24 *Georgia R.*518.) (3.) Bad faith. *(Dixfield*v. *Newton,*41 *Maine R.*221. *Taylor*v. *Ely,*25 *Conn. R.*250.) (4.) Knowledge of one’s rights, and an intention to deceive. *McAfferty*v. *Conover,*7 *Ohio R.*99. *Dyer*v. *Cady,*20 *Conn. R.*563. *Hendrickson’s Appeal,*24 *Penn. R.*393. *Spangler’s Appeal, Id.*424. *Wesley*v. *Sargent,*38 *Maine Rep.*315. *McGar*v. *Williams,*26 *Ala. R.*469. *Baldwin*v. *Richman,*1 *Stock. N. J. Rep.*394. *Cicotte*v. *Gagnier, 2 Mich. R.*381. *Pierce*v. *Andrews,*6 *Cush.*4. *Cambridge Inst.*v. *Littlefield, Id.*210. *Lawrence*v. *Brown,*1 *Seld.*401. (5.) Mutuality. *(Dempsey*v. *Tylee,*3 *Duer,*73. *Lansing*v. *Montgomery, 2 John.*382. *Bentley*v. *Cleaveland, 22 Ala. R.*814. *Wright*v. *Hazen,*24 *Verm. R.*143. *Cohoes Co.*v. GOss, 13 *Barb.*137. *Edmondson*v. *Montague,*14 Ala. Rep. 370. *Averill*v. *Wilson,*4 *Barb.*180. *Bolling*v. *Mayor,*3 *Rand.*563.) (6.) Absence of equal opportunity in both parties. *(Casey*v. *Inloes,*1 Gill *Md. R.*430. *Brewer*v. *Boston and Worc. R. R. Co.,*5 *Metc.*483. *Commonwealth*v. *Moltz,*10 *Barr Penn. R.*527. Issac v. *Williams,*3 *Gill.*278. *Gamble*v. *Gamble,*11 Ala. *Rep.*966. *Steele*v. *Putney,*3 *Shep. Maine R.*327.)

3. The party setting up the estoppel must not only have acted, but himself have been wrongly misled by the plaintiff. *(Darlington’s Appropriations,*13 *Penn. Rep.*430. *Copeland*v. *Copeland,*28 *Maine Rep.*525. *Weisser*v. *Dennison,*6. Seld. 83.)

4. The case differs in no material respect from the ordinary case of sale of goods delivered, where one or more of the articles has been omitted from the bill of parcels, except that in the present case the wheat was in bulk and was to have been measured; it was consequently an act of prudence, as .well as a duty, for the defendant to have measured the wheat, *67whether acting for himself or for another, and in not doing so he has been guilty of *gross negligence.*It can not be urged, in answer to this, that the plaintiffs’ recovery of the defendant in this cause would leave the defendant without a remedy, for the defendant can recover of his vendee upon the same grounds that we recover from him.

II. The court erred in withdrawing from the jury the material question of fact, whether any receipt or representation was made in regard to the identical surplus wheat for the payment of which this action was brought. *(Marshall*v. *Pierce,*12 *N. H. Rep.*131.)

1. The defendant waived the estoppel by the tailing issue upon the quantity of wheat delivered, even if an estoppel had otherwise been worked. *(Bartholomew*v. *Candee,*14 *Pick. Rep.*171.)

2. Nor can the defendant escape liability by merely, at the trial, disclosing a principal whose name was unknown to the plaintiffs at the time of the transaction, as well as even the fact of any agency. *(Ford*v. *Williams,*21 *How. U. S. Rep.*289. *McClellan*v. *Parker,*27 *Mis. Rep.*162.) The effect of such disclosure at any time is not to exonerate the agent, but to give the plaintiffs an election to pursue either the party who dealt with them, or the principal so disclosed. *(Magee*v. *Atkinson,*2 *Mees. & Wels.*441. *Jones*v. *Littledale, 6 Adol. & Ellis,*468. *Mills*v. *Hunt,*20 *Wend.*431. *Thompson*v. *Davenport,*9 *Barn. & Cres.*78. *Taintor*v. *Prendergast,*3 *Hill,*72. *Story’s Agency,*§ 269. 1 *Am. Lead. Cas. ed. of*1847, *p.*455.)

3. Nor does it make any difference that it is known to the other party, that the occupation of his contractor is that of an auctioneer or broker, employed in *selling*property as the agent of others. *(Mills*v. *Hunt,*20 *Wend.*431.)

*E. Randolph Robinson,*for the defendant, respondent.

The plaintiffs were estopped from showing any error in the weigher’s certificates and the receipts furnished by themselves. *(Greenl. Ep.*§§ 207, 208. *Wyatt*v. *The Marquis of Hertford,**683 *East,*147. *Cheever*v. *Smith,*15 *John. 276. Davis*v. *Allen,*3 *Comst.*171. *Union Bank*v. *Sollee, 2 Strob. S. Ca. Rep.*407.) mmm

Moncrief, J.

The sole question to be considered in this case is, whether upon the evidence in the cause, a verdict in favor of the plaintiffs could be upheld. If such a verdict would be set aside, then there was no error in dismissing the complaint, and the exceptions must be held to be. untenable.

The complaint, in' substance, is that on or about the 23d day of December, 1853, the plaintiffs bargained and sold to said defendant, at his request, at said city, for cash, a quantity of Canada wheat in store, to wit, *about*six thousand three hundred bushels, at and for the price of $1.65 per bushel, the number of bushels to be ascertained by weight. That on or about the 27th day of December, the plaintiffs bargained and sold to said defendant, at his request, at said city, for cash, a quantity of Canada wheat in store, to wit, *about*ten thousand four hundred and eleven bushels, at and for the price of $1.75 , per bushel, the number of bushels to be ascertained by weight. That said wheat was weighed and the number of bushels *thereby ascertained,*and. the *iveigher’s certificate thereof thereupon delivered to said defendant,*&c. That certain payments on account of said two purchases were made on the 7th, 11th and 12th days of January, 1854; that there is still due and owing to said plaintiffs, from said defendant, the balance of $273.13, with interest from 12th January, 1854, &c.

The answer denies the quantity of wheat delivered as alleged in the complaint; avers the payments, as specified therein, and that the sum paid on the 12th January, 1854; was in full payment of all the wheat ever before that time purchased of the plaintiffs by the defendant. The defendant further alleges that the amount of said payments was computed and adjusted between the defendant and plaintiffs, upon *weigher’s certificates of the weight and quantity*of said wheat, *furnished by the plaintiffs,*to the defendant, shortly before such payments were made, and the defendant paid to said plaintiffs the full *69amount which, appeared to be due from him to them by said certificates, &c. And further, that all said wheat was shipped by the defendant to France, and invoiced by him and sold by him, in France, at the amount, as to quantity, stated in said certificates. '

The action appears to have been commenced in September, 1856. The weighers testified that they weighed the wheat in question and sent return thereof to the plaintiffs, who never claimed to them that there was error. It was admitted “ that the plaintiffs had the wheat weighed, on its delivery to the defendant, and before the 12th day of January, 1854, sent to the defendant a bill, with the weigher’s certificate annexed, by both of which certificates and bill it appeared that the quantity delivered to the defendant was as follows : Under sale of December 23, 6225fo bushels. Under sale of December 27, 10,278 bushels. And the whole amount of the bill, at the price of $1.65 a bushel for the first mentioned parcel, and $1.75 for the second mentioned parcel, was (including therein one half of the expenses of weighing the same) $28,302.62. Thereupon the defendant paid the plaintiffs, on account of and in settlement of the bill, the following amounts at the following dates: •

> January 7, 1854, -.........$12,000 00

> January 11, 1854, - -- -- -- -- - 9,000 00

> January 11, 1854, - -- -- -- -- 5,000 00

> January 12, 1854, - -- -- -- -- - 2,302 62

And on the occasion of the last payment the plaintiffs delivered to the defendant a receipt, of.which the following is a copy :

> ‘New York, 12th January, 1854.

> Received from A. Carpentier, twenty-three hundred two dollars, balance in full purchase -of wheat, as per acct.

> Gillespie, Dean *&*Oo.

> Per G. M. Clebburn/

The defendant was a commission merchant, and had bought-the wheat on an order from France. As soon as the defendant *70bought, he shipped it to France, drew bills against the shipments and settled with his correspondent in France, and according to the measurements in the weigher’s certificates, and plaintiffs’ bill delivered to the defendant by the plaintiffs, receiving payment only for the amount therein stated. It was not until after all this had happened, that the plaintiffs claimed that there was an error, or that the defendant heard of the alleged error.”

The question of law arises, upon this state of facts, whether the plaintiffs are estopped from claiming that in point of fact the second lot of wheat weighed “ Ten thousand three hundred and ninety-two bushels,” as alleged in the complaint, instead of “ Ten thousand two hundred and seventy-eight bushels,” as stated in the weigher’s certificate, as returned to the defendant by the plaintiffs, as per their account rendered as aforesaid ?”

Admissions, whether of law or of fact, which have been *acted upon by others,*are conclusive against the party making them, in all cases between him and the person whose conduct' he has thus influenced. (1 *Greenl. Ev.*§ 207.) It makes *no difference*in the operation of this rule, whether the thing admitted be *true*or *false,*it being the fact that it has been acted upon that renders it conclusive. *(Id.*§ 208.)

Judge Bronson, approving of the decision in *Welland Canal Co.*v. *Hathaway, (8 Wend.*483,) in his dissenting opinion in *Dezell*v. *Odell,*(3 *Hill,*220,) in discussing the question of estoppel, says: “ Before the party is concluded, it must appear, 1. That he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title or claim which he proposes to set up. 2. That the other party has acted upon the admission; and 3. That he will be injured by allowing the truth of the admission to be disproved.” The authorities upon this point are numerous, and all speak the same language. *(Frost*v. *The Saratoga, Mut. Ins. Co., 5 Denio,*154, *and cases cited at page*158.)

The number of bushels of wheat was, by the agreement of the parties to this action, “to be ascertained by weightthe plaintiffs allege as a material averment in their complaint that *71the wheat was weighed and the number of bushels thereby ascertained, and the *weigher’s certificate thereupon delivered to said defendant.”*These returns of weight were so delivered by the plaintiff. It is clearly inconsistent, now, to set up that the weight was in excess of what those certificates exhibited. The defendant acted upon the supposed correctness of the certificates in making his payments on account of his purchases ; in making the payment of the 12th January, 1854, which the plaintiffs received as *“balance in full purchase of wheat*as per ac’t,” which they thus again repeated was without error; in the shipment of the wheat to France, drawing bills against the shipments and settling with his correspondent in France, relying upon the measurements in the weigher’s certificates and the bill of the plaintiffs : and in receiving payment only for the quantity stated in those returns. The defendant, assuming it to be true that a greater number of bushels of wheat was actually delivered to him, than the certificates and' the plaintiffs’ account specified, must necessarily suffer by permitting the plaintiffs now to assert the claim *(Cheever*v. *Smith,*15 *John.*276.) They are thereby deprived of the opportunity of establishing the true measurement and of disputing the truth of their assertion in January, 1854. The defendant is left for two years with its silent indorsement of the certificates being correct; he has drawn upon his principal upon that basis and a settlement has been made. It seems quite clear, that good conscience requires that the- plaintiffs should not, under such circumstances, be permitted to speak in derogation of their claim as made in 1854, and acquiesced in for two years subsequently.

The complaint was therefore properly dismissed, and judgment must be entered upon the verdict for the defendant, with costs.

Bosworth, Ch. J.

The evidence relied upon as a bar to the action, was admitted under a written stipulation that it might be read. There is nothing in the other evidence tending to repel the inferences and conclusions partly deducible from it. There is no question in regard to the pleadings.

*72The substance of the evidence is, that "the plaintiffs furnished written and official certificates of the quantity of wheat delivered; that the defendant has not only paid in full for the quantity thus certified, (which fact alone would not be a defense,) but relying on the accuracy of those certificates he has sold the wheat as being the quantity thus certified and accepted payment accordingly; and has done this in ignorance of the alleged mistake, or in other words relying on the accuracy of these certificates.

He has been induced thereby to change his position, and it will be an injury to him if the plaintiffs are now permitted to contradict the truth of those written statements, which they furnished, and furnished as a basis for the defendant’s future action.

The admission or certificate, is clearly inconsistent with the fact sought to be proved. The defendant has acted on the admission or certificate, by selling the wheat as being of the quantity certified. And he will be injured by allowing the truth of the admission or certificate to be disproved.

• These elements satisfy the conditions of an *estoppel in pais. (Dezell*v. *Odell,*3 *Hill,*222. *Cheever*v. *Smith,*15 *John.*276, cited with approbation in *Davis*v. *Allen,*3 *Comst.*170, 171.)

These certificates were furnished with the expectation that the defendant would rely upon their accuracy, and forbear to have the wheat weighed for his own safety or future protection.

Whether the plaintiffs did or did not know that the defendant bought the wheat to be shipped to France, I do not consider very material. They must have supposed it was bought to be resold, and that if it could be sold as an entirety lot, it would naturally be sold, relying as to quantity upon the accuracy of the certificates.

I think the plaintiffs' are concluded. *(See also, Kingsley*v. *Vernon,*4 *Sandf.*361.)

White, J. concurred.

Judgment affirmed.