
    Charles W. Pratt, Appellant, v. Joseph Ano, Respondent.
    
      JSstoppel—must be based on a statement as to an existing fact, not on a promise — the credibility of an interested witnéss is for the jury.
    
    In an action.bi'ought to. recover, damages which resulted to certain spruce trees belonging to the plaintiff, from the defendant’s acts in cutting and removing' hemlock timber under ah agreement with the owner of the fee of the premises . upon- which -all the timber grew, it appeared that Joseph Leavitt, who owned about 2,200 acres of woodland, in February, 1889, made -a contract with the plaintiff, by which he sold the plaintiff all the “ spruce timber, from what will ■ make a thirty-foot dock stick and upwards,” on the premises in question.
    In 1891 Joseph .Leavitt made a contract with the-defendant which provided that the defendant should peel and draw hemlock bark upon the same wood lot, ' 'and cut roads for that purpose, and should have the further right to cut and . remove the hemlock timber from which the bark had bceh-peeled.
    'The plaintiff claimed that the defendant, in peeling the hemlock bark, in cutting the necessary roads' and'in felling and removing the hemlock timber in the course of the execution of his contract; damaged the spruce timber which the ■; -plaintiff owned under his contract with Joseph Leavitt.
    
      The principal question in the case was one of estoppel. Upon this point the foreman of the plaintiff testified in his behalf that, in May or June, 1891, he discovered a man cutting a spruce tree on the premises in question; that he told the defendant about it and stated that other timber had been cut, and that the defendant replied that he would attend to it right away, and that the witness thereupon told the plaintiff of the conversation. The plaintiff testified that he relied upon what the defendant said. It was claimed by the plaintiff that this statement estopped the defendant from asserting that he was not liable for any injury which might have occurred to the plaintiff's spruce trees because of the cutting and removal of the hemlock trees.
    
      Held, that an estoppel was not made out;
    That the defendant made no statement of any existing fact upon which the plaintiff was to rely in shaping his future conduct in reference to the timber; 'That an estoppel in pais cannot be founded upon an agreement to do something in the future;
    
    That if, however, the question of estoppel was to be considered, the credibility of the foreman, who gave the testimony which it was claimed constituted an estoppel, and who was an interested party, should be submitted to the jury.
    Appeal by the plaintiff, Charles W. Pratt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Oneida on the 29tli day of January, 1895, upon the verdict of a jury rendered after a trial at the Oneida Circuit, with notice of an intention to bring up for review upon such appeal an order denying the plaintiff’s motion for a new trial made ■upon the minutes.
    
      Walter Ballou, for the appellant.
    
      Jones & Townsend, for the respondent.
   Ward, J.:

This action was brought to recover damages occasioned by the negligence of the defendant in injuring the spruce trees and timber of the plaintiff, in cutting hemlock timber, peeling bark on, and removing the same from, lots 3, 5, 9, and the east half of lot 10, Woodhull tract, in the towns of Wihnurt, Herkimer county, and Forresport, Oneida county, in this State, in the years 1892 and 1893.

The premises upon which the timber in controversy was located consisted of about 2,200 acres of woodland,' and on the 27th of February, 1889, one Dr. Joseph Leavitt, who resided at Pittsfield, Massachusetts, was the owner thereof in fee, and, except as he parted with certain interests in the timber to the defendant, con-tinned to be such owner, down to the time of the commencement of this action.

On the last-mentioned date the said Leavitt and the plaintiff herein entered into a contract in writing, whereby Leavitt sold to the plaintiff all -the “ Spruce timber from what will make a thirty-foot dock stick and upwards,” on the said premises. The contract further provided that the plaintiff should have ten years from April 1, 1889, to cut and remove the said spruce.

In 1891 the defendant, with knowledge of the plaintiff’s contract aforesaid, entered into a contract with Leavitt for the peeling of the hemlock bark, drawing it and cutting the roads for that purpose, on the whole of lots 5 and 10 aforesaid. He was to load the bark on the cars at a railroad station about eight or nine miles from the lot. The defendant’s contract also embraced the right to cut and remove" the hemlock timber from which the bark was peeled.

At the time the defendant made the contract with Leavitt there does not appear to have been much, if any, of the spruce timber removed from the premises. The evidence upon the trial tended to show that, in peeling the hemlock bark, cutting the roads, felling and removing the hemlock timber, damage to some extent was done to the plaintiff’s spruce timber; but from the evidence it seems difficult to determine whether such damage extended further than was incidental and necessary in the removal of the timber, the peeling of the bark and in cutting the roads. There was some dispute upon the trial as to. what was meant by a thirty-foot dock stick. It was claimed by the defendant that a spruce stick was not a dock stick unless it was thirty feet long and six inches in diameter at the small end, while it was claimed by the plaintiff that it might be from four to four and one-half inches at the top, running up larger.

Oliver Hevener was sworn for the plaintiff. ' He testified that he was in the employ of the plaintiff as foreman, and a part of his business^ was to look after the plaintiff’s timber lands, and to see that no theft or damage was committed on the timber, and he continues: In the year 1891 I discovered a man by the name of Rocker cutting a spruce tree on lot 5, -Woodhull tract (the tract in question). After that I saw Mr. Ano and had a conversation with him on the subject. I told him I went there to look where they had been peeling and I found some timber down and found them cutting down some timber. I said to him that Mr. Pratt told me to look after it, and I notified him and he told me he would attend to it right away. I told him that these men had cut spruce * * * this Avas somewhere the last of May or first of June, 1891. That was about the time they began cutting hemlock there. I think the hemlock on lot 5 and 10 (the lots upon which the hemlock timber was located and was peeled and cut by the defendant) was cut and got out in 1892 and 1893, and some in 1891.”

This witness further stated that he immediately after this conversation with the defendant stated to the plaintiff what the defendant had said, and the plaintiff testified that he relied upon that statement. The learned trial judge in charging the jury, after stating the nature and purposes of the action and that the plaintiff became the owner under his contract with Leavitt “ of all spruce timber what will make a thirty-foot dock stick and upwards,” proceeds, notwithstanding his contract, Leavitt had the right to sell and dispose of any other timber that was not included within the terms of this contract. It appears that upon the premises in question there ivas some hard wood timber that some of the witnesses have designated ‘ hub stuff,’ and some hemlock; these Leavitt had the right to sell and to give permission to remove the same. It follows that Leavitt and any persons that he might designate had the fight to remove the hemlock timber, and if in its reasonable removal certain spruce timber was injured, the plaintiff had no cause of action therefor. It is evident that in removing the hemlock it would be necessary to make roads, and if that rendered it necessary to cut certain spruce the plaintiff would have no cause of action on that account, and if in cutting the hemlock it necessarily fell upon spruce and injured it, the plaintiff could not recover for that. Under this contract the plaintiff did not under its terms OAvn such timber. So much as Avas injured by the operation made necessary in the removal of the hemlock timber under the terms of this contract did not belong to the plaintiff and he cannot recover for it. Some time after the plaintiff and Leavitt had entered into this contract, the defendant and Leavitt entered into another contract, by which Ano agreed, for a certain price, to remove from those lots, 5 and 10, all the hemlock bark and sawing timber. Leavitt had the right to make that contract. Under that contract the defendant did not do anything — himself, I mean—in the way of removing this hemlock timber; but as it appears he sublet that work to other parr ties.” This statement seems borne out by the evidence. “ To one party he let the work of felling the trees and peeling the bark and putting it upon the road ways that had been cut for that purpose, and to cut the roads. To another party it is said that he let the job of skidding the hemlock logs and drawing them to the mill. If that was all the case, I would charge that the plaintiff could.not recover in this action for the reason that the contract between Leavitt and Ano was a valid contract * * * ; that Ano had a right to perform and not encroach upon the rights of the plaintiff. The rule is that if the party to whom such contract work is sublet does anything that is contrary to law, that the contractor so doing the wrongful act is liable to the party injured and not to the original contractor.”

There was no exception to this charge or any portion of the same. It, therefore, became the law of the case for the jury, acquiesced in by the parties, and, whether erroneous or not, cannot be reviewed here.

The learned judge submitted but a single question to the jury, which is the chief matter we are to review upon this appeal, and that was the question of estoppel, viz., whether the conversation above quoted from the testimony of the witness Hevener, upon which the plaintiff relied and which does not seem to have been contradicted by any evidence in the case, estopped the defendant from asserting that he was not liable for the injury that might have occurred to the plaintiff’s spruce trees' by reason of the cutting and removing of the hemlock trees. The counsel for the plaintiff excepted to the court’s submitting this question to the jury, and insisted that, as the evidence was uncontradicted, the court should have held and charged that there was such an estoppel. This the court refused to do, and plaintiff’s counsel excepted.

In reverting to the facts which go to make up the assumed estoppel, assuming that the plaintiff’s proof was conclusive as far as it went upon that subject, it will be seen that a very slender foundation is laid upon which to base an estoppel.

In the pioneer case on this subject of equitable estoppel or estoppel in pais (Pickard v. Sears, 6 Ad. & E. 469) Lord Denman, Ch. J., on appeal lays down the following rule as to what constitutes such estoppel: “ The rule of law is clear that where one by his'words or conduct willfully causes another to believe the existence of a certain state of things and induces him. to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.”

Later adjudications have supplemented this with the proposition that it is not necessary that the party sought to be estopped should have intended by his acts to deceive the other party, and it is’ sufficient that his acts and statements were calculated to mislead and did mislead the other party and are inconsistent with the evidence he proposes to give or the claim he proposes to set up. (Manufacturers & Traders' Bank v. Hazard, 30 N. Y. 226; Bowen v. Brown, 30 id. 519, 541.)

The most that can be made out of the assumed estoppel is that the plaintiff’s agent informed the defendant at the time the said contractors under the defendant began to cut the hemlock and peel the bark that they were injuring the plaintiff’s timber, and the defendant said he would attend to it right away. Here is not a statement by the defendant of any existing fact upon which the plaintiff was to rely in shaping his conduct with reference to the timber in the. future, but it was simply a promise of the defendant either to look into the matter and inform the plaintiff or to stop further injuries. Just what inference is to be drawn from that statement, what the defendant intended thereby and how the plaintiff understood it, and how far it influenced his conduct, were questions for the jury; and if the defendant was entitled to the submission of the question of estoppel at all to the jury, upon this evidence the charge was as favorable to the defendant as he could expect. The court charged that if the jury found that the defendant was estopped, and that he or his employees or sub-contractors had injured any of the thirty-foot dock sticks upon the premises that came within the plaintiff’s contract, then for such injury the plaintiff could recover, otherwise not. But the court did submit the question to the jury whether the facts of the assumed estoppel as stated by the witness Hevener had occurred, and this submission is seriously impressed upon us by the appellant as error, because there was no evidence disputing this given upon the trial; and, therefore, the court should liave assumed the facts as existing, as stated by this witness Hevener, and should have assumed that the plaintiff relied upon that statement and thus neglected to look after his own timber and protect himself, relying upon defendant’s promise to do so. This evidence was given by the plaintiff’s foreman, whose business it was to look after" this timber and protect it from injury, and who, having failed to do so, was, in a sense, interested in giving a good reason why he had not done so. The plaintiff, of course, was an interested witness, and, therefore, the court was probably right in submitting the question as to whether the conversation .occurred, to the jury, as the only proof of the fact came from interested witnesses.

But the trouble with the plaintiff’s case upon this question lies back of all this, in the fact that no estoppel was shown, assuming that the plaintiff’s witnesses upon the subject stated truly what had occurred. An estoppel in pais cannot be founded upon an agreement to do something in the future. (White v. Ashton, 51 N. Y. 280, 285, affg. 25 Barb. 16.)

If there is a breach of such an agreement, the party injured (if he has any remedy) may recover damages .for such breach; but. this is not done upon the theory of an estoppel. The estoppel must be based upon the situation as it exists when the facts occurred out of which it was created; and equity goes back to that time to ascertain whether, in good faith and in justice, the party sought to be estopped can afterwards establish a different state, of." facts from that which the party asserting the estoppel had reason to believe, from the acts and conduct of the other party, existed at the time and upon which he relied.

The appellant also claims that the learned trial judge erred in charging the jury that, upon the question of estoppel and the intent of the parties, the jury might take into consideration the contents of certain letters which had been read to the jury without objection. Some of these letters had reference to matters that might bear upon the question of estoppel, but if any inferences were to be drawn from those letters on that subject, they were" favorable to the plaintiff, and concerning them no exception on his part will lie.

It follows that the judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  