
    [No. 11100.
    Department Two.
    May 25, 1888.]
    GRIFFETH & DALZEL, Respondents, v. H. BROWN, Appellant.
    Estoppel in Pais—Necessary Elements of—Instructions. — An instruction purporting to state the law upon the subject of estoppel in pais is erroneous, if it omits the element that the party against whom the estoppel is invoked made the declaration or did the act upon which the estoppel is sought to be based, either with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud. And the error is not remedied by the fact that in another and distinct instruction the rule was stated with more accuracy.
    Appeal from a judgment of the Superior Court of San Benito County, and from an order refusing a new trial.
    The facts are stated in the opinion of the court.
    
      McCroskey & Hudner, for Appellant.
    The instruction upon the subject of estoppel in pais was erroneous. (Biddle Boggs v. Merced Mining Co., 14 Cal. 279; Lux v. Haggin, 69 Cal. 255.)
    
      Montgomery & Scott, and N. C. Briggs, for Respondents.
   McFarland, J.

This is an action to recover five hundred sacks of wheat, or the value thereof. The verdict and judgment were for plaintiffs, and defendant appealed.

The action arose out of those prolific sources of litigation,—leases of agricultural land, cropping contracts, and mortgages of growing crops.

About the 1st of November, 1883, the defendant Brown, being the owner of a certain tract of land, made a verbal contract (the terms of which are in dispute) about said land with one Manuel Smith. Under this contract (whatever it was) Smith cultivated the land and put in a crop of wheat. On February 19, 1884, Smith mortgaged his growing crop to plaintiffs to secure future advances. Under the terms of the mortgage plaintiffs were authorized to take possession of the grain and harvest, thrash and sack it, which they did. They gave defendant one fourth of the grain, and piled the other three fourths in one corner of the premises, from which defendant took the five hundred sacks sued for, claiming it to be his property.

Plaintiffs’ theory (supported by some evidence) was, that the verbal contract between Brown and Smith, made in November, 1883, was simply a lease,—Smith to pay as rent one fourth of the crop, and the stubble and straw to go also to Brown. But Brown introduced a written instrument signed by himself and Smith, dated November 3, 1883, but shown to have been executed after plaintiff’s mortgage, which was a cropping contract, by the terms of which Brown was to be and remain the owner of all the wheat raised, not only until Smith should have delivered him one fourth of the wheat raised, but until he should have delivered to him also an additional amount of the wheat sufficient to pay, at market price, the sum of $576.22, and interest, which Smith owed him for certain horses and farming implements. And defendant’s theory (supported also by some evidence) was, that the written cropping contract was the same as the original verbal contract made in November, 1883, and was a mere reduction of the latter to writing. So that the jury may have found in favor of either party as to the real character of the original verbal contract.

But plaintiffs also introduced evidence tending to show that when Smith came to them for advances they went to defendant Brown and inquired of him what the contract was between him and Smith, and told him that Smith wanted them to make him advances; and that Brown said, as Smith had before told them, that he (Brown) was to receive one fourth of the wheat, and the straw and stubble; and encouraged them to make the advances, and said nothing about any other lien on or interest in the wheat; and that by Brown’s statements and representations they were induced to take the mortgage and make the advances. And for these reasons they claimed that Brown was estopped from setting up any claim under such cropping contract. The evidence as to what Brown said to plaintiffs about the contract was conflicting; and it is evident that the instructions of the court about the issue of estoppel thus raised were important and material.

The court instructed the jury, among other things, as follows: “If you find from the evidence that plaintiffs herein, Griffeth and Dalzel, before receiving the mortgage from Smith, or before making advances on said mortgage, applied to Brown, lessor to Smith, to ascertain Smith’s liability to him, Brown, under the said lease or contract, and that defendant Brown by his declarations or conduct misled said Griffeth and Dalzel to their prejudice as to the material terms of said contract or lease, he, Brown, is estopped from setting up the alleged lien, and shielding himself behind the stipulation that the grain was subject to a lien for the payment of claims other than rental, and which were not communicated to plaintiffs.”

The court also gave another and longer instruction (found on page 35 of the transcript), substantially to the same effect as the one just quoted, and with no other important qualification.

It is quite evident that these instructions were erroneous. They lack the most important element of estoppel; namely, that the party against whom it is invoked made the declaration or did the act upon which the estoppel is sought to be based, either with the express intention to deceive, or with such careless and culpable negligence as to amount to constructive fraud. (Biddle Boggs v. Merced M. Co., 14 Cal. 368; Davis v. Davis, 26 Cal. 38; 85 Am. Dec. 157.) And the error is not remedied by the fact that in another and distinct instruction the rule was stated with more accuracy. The jury were at liberty to follow either instruction.

We are aware that a judgment should not be reversed for every abstract error occurring in the preliminary steps which led to it. But the doctrine of estoppel in pais would be very harsh and unjust if allowed to go beyond its legitimate limits. Its practical meaning, generally, is, that a man must lose property actually and legally his on account of something which he has said about it. Brown was not under obligation to tell plaintiffs anything about his property or his business. Still, if with intent, either express or fairly to be implied, he did make false representations to plaintiffs for the purpose of deceiving them, or was guilty of fraudulent carelessness in his representations, and plaintiffs had not other reasonable means of knowing the truth, and relied on such representations, then he should suffer for his conduct. But these characteristics of the rule of estoppel should have been fairly and clearly given to the jury. And it is quite probable that this was the very point which determined the verdict. For this reason, therefore, we are of the opinion that the judgment should be reversed.

Judgment and order denying a new trial reversed, and cause remanded for a new trial.

Searls, 0. J., and Sharpstein, J., concurred.  