
    Charles C. Nichols versus Lemuel Arnold.
    Where auctioneers sold goods of the plaintiff to the defendant, and took in payment a note made by the defendant payable to his own order and indorsed by him, and he afterwards stopped payment, and the auctioneers became parties to an indenture of assignment for the benefit of his creditors, containing a release, and a sum was put down against their names as the amount of their demands, which was just sufficient to include all their other demands, and also this note, which still remained in their hands, though at the time of signing the indenture they said they did not know whether they had guarantied this sale or not ; and it appeared on examination afterward that they had not, and they accordingly did not claim under the assignment for the amount of this note ; and the plaintiff, being requested to become a party to the indenture, declined, saying that he was not a creditor of the defendant : — it was held, that the auctioneers, by thus becoming parties to the indenture, had not released the note in question.
    
      Held also, that the plaintiff’s declaration, made on the supposition that the sale was guarantied, that he was not a creditor of the defendant, was not an estoppel in pais whereby he was precluded from demanding of the defendant payment of the note.
    A surrejoinder denying that the auctioneers had authority to release the defendant, absque hoc that they did release him, is bad for duplicity, each fact being material . and a sufficient issue.
    This was assumpsit on a promissory note, dated October 4, 1826, payable to the defendant’s own order, and by him signed and indorsed. It was taken by Whitwell, Bond and Seaver, in payment for goods of the plaintiff sold by them, as auctioneers, to the defendant.
    The defendant pleaded five pleas, on three of which the pleadings terminated in issues of fact, and on the two others, by demurrer to a surrejoinder.
    In support of the pleas terminating in issues of fact, the defendant produced an indenture of assignment and release, made in December, 1826, and executed by the defendant on one part and divers creditors on the other, whereby, in consideration of this assignment, they released their demands against the defendant. To this instrument was annexed a schedule of the debts due from the defendant to several creditors respectively, and a certain sum was carried out against the names of Whitwell, Bond and Seaver, as creditors, and the instrument was signed by them, this schedule being annexed at the time of their signing. When the assignees subsequently sent to the several creditors to ascertain the precise amount of their demands, for the purpose of declaring a dividend, the amount stated by Whitwell, Bond and Seaver, as due to them, was less than that carried out in the schedule, by the amount of the note in question ; and they referred the assignees to the plaintiff as the owner of the note. The plaintiff being thereupon applied to on the part of the assignees, disclaimed having any interest in this note, and said he was not a creditor of Arnold, the sales, for which the note was given, having been, as he said, guarantied by the auctioneers, to whom he looked, having no concern with the defendant. It appeared that the defendant had considered himself to be discharged from this debt, and had represented to other persons that all his creditors had released their demands, and in consequence of these representations, they had intrusted him with property for the purpose of enabling him to prosecute business, which it was represented they would not have done, had they not supposed him to be free of debt. No dividend on this note was paid or offered to the auctioneers. Nichols having ascertained that they did not guaranty the sales, received this note from them in May, 1827. It was further testified by one of the auctioneers, that shortly after the assignment was made, he told the defendant that this note belonged to Nichols. He also testified, that when he signed the indenture, he stated that he did not know whether the sales for which the note was given, were guarantied by his firm, but that he was then advised that he was safe in signing, as his release would only apply to the amount actually due to his firm, whatever it might be ; and his firm thereupon became a party to the indenture.
    The defendant objected to the admission of any part of the testimony introduced by the plaintiff, except the note ; on the ground that the declaration made by the member of the firm of Whitwell, Bond and Seaver, at the time of executing the indenture, could not be admitted to control the effect of a written instrument, and that the plaintiff, having declared that he had no interest in this note, and that he was not a creditor of the defendant, and the defendant having acted on this declaration, the plaintiff was estopped to prove that the facts were not as he had declared. He also contended that the plaintiff had, on the above facts, constructively assented to and acquiesced in the release of the debt by Whitwell, Bond and Seaver.
    A verdict was found for the plaintiff; and the above questions, with that arising on the demurrer, were reserved for the consideration of the Court.
    In the surrejoinder, the plaintiff “ protesting that the said Whitwell, Bond and Seaver did not promise the said Nichols to be responsible for the price of the goods as in said rejoinder is mentioned, says, that he did not give his consent, approbation and authority to said Whitwell, Bond and Seaver, to become parties to the- said indenture, without this, that the said Whitwell, Bond and Seaver did release, &c. in manner and form,” &c. To this surrejoinder the defendant demurred for duplicity.
    
      March 20th.
    
    
      II. H. Fuller, for the defendant,
    to show that the plaintiff’s declaration that he was not a creditor of the defendant, was an estoppel in pais, cited Co. Lit. 352a, 3526; 2 Stark. Ev. 28, 31, 32, 33; Watson v. Threlkeld, 2 Esp. R. 637; Robinson v. Nahon, 1 Campb. 245; Like v. Howe, 6 Esp. R. 20; Flower v. Herbert, 2 Ves. sen. 326; Meredith v. Hodges, 5 Bos. & Pul. 453; Smithson v. Smith, Willes, 461; Lipscombe v. Holmes, 2 Campb. 441; Goldie v. Gunston, 4 Campb. 381; The King v. Stacey, 1 T. R. 1; Jerri v. Weare, 3 Price, 602; Howard v. Mitchell, 14 Mass. R. 241.
    In support of the demurrer, he cited 1 Chit. PI. (ed 1809) 511.
    
      Peabody, for the plaintiff,
    contended, as to the demurrer, that the consent, approbation and authority of Nichols, and the discharge by Whitwell, Bond and Seaver, constituted but one fact, the whole of which might be traversed in the surrejoinder without duplicity, the whole surrejoinder being equivalent to saying that Whitwell, Bond and Seaver did not release with the authority of the plaintiff. 1 Chit. PI. 578. What precedes absque hoc is inducement. That Whitwell, Bond and Seaver did not intend to release the note, is evident from the testimony of one of the partners.
    An estoppel in pais is only where a declaration is made deliberately and where it would deceive. Here the defendant was not deceived. The plaintiff supposed that by signing the indenture he should discharge the auctioneers from their guaranty. He thought the note belonged to them, because they had guarantied the sales. He was mistaken in his premises, and a declaration made under a mistake is not binding. Hall v. Huse, 10 Mass. R. 39. The defendant was not injured by this declaration of the plaintiff; he obtained credit, but this was no injury.
    
      April 6th.
   Parker C. J.

delivered the opinion of the Court. The objection taken at the trial, to the testimony of the witnesses on the part of the plaintiff, has not been insisted on.

The evidence, we think, justifies the verdict; for it proves that both Whitwell, Bond and Seaver, and the plaintiff, acted under a mistake, in regard to the supposed guaranty of this note. It not being guarantied, the plaintiff’s right cannot be injured by the act of Whitwell, Bond and Seaver, in signing the indenture. The note was not discharged by it, they having no authority over it.

Nor do we think that the plaintiff is prevented, by any tnmg in the nature of an estoppel, from claiming the note as his property. It does not appear that the assignment was made, or any act done prejudicial to the defendant, in consequence of any declarations by the plaintiff in regard to the note.

The surrejoinder of the plaintiff, which is specially demurred to, is bad in averring two distinct and independent grounds in answer to the rejoinder, either of which is traversable, and would have been conclusive for the plaintiff if found in his favor. But the plaintiff may amend, on payment ol the costa °f that issue from the time of filing the surrejoinder.  