Ryers v. Tuska

We have examined this case with care, but do not find that the justice committed any error either in his findings of fact, or his application of the law to the facts as found, and deem it necessary to add but little to what he has said concerning the law governing the case. It is clear there was no memorandum made or signed by the parties sufficient to take the transaction out of the statute of frauds at the time the verbal agreement was made. It is true that later in the day the defendant handed up notice that he would have to suspend, which was signed by him; but the evidence was entirely insufficient to warrant the justice in finding that the memorandum showing his contracts for the day, which was handed to the clearing committee, was made by him or given to the committee by his authority. Consequently the case cannot be brought within Peabody v. Speyers, 56 N. *928Y". 230. The contention that, although the contract was void under the statute of frauds, yet that it was binding between the parties under the constitution and regulations of the Consolidated Exchange, is based upon section 1,. art. 3, of the by-laws governing dealings in railroad and other securities,, which provides that “all offers to buy .and sell security shall be binding.” But this by-law was not introduced in evidence, and, even if it had been, we do not think it would have availed the appellant. In Shapley v. Abbott, 42 N. Y. 443, Earl, C. J., delivering the opinion of the court, said: “A party may, undoubtedly, without trenching upon public policy, waive the defense-of usury or of the statute of frauds, or of the statute of limitations, by omitting to set up the defense when sued; and he may waive his statute exception by turning out exempt property when the officer comes with the execution. But no case has occurred to me in which-a party can in advance make a valid promise, founded in public policy, shall be inoperative.”

The same case is also conclusive of the appellant’s contention that the defendant is estopped from pleading the statute of frauds. If there is an estoppel at all, it is an estoppel in pais. This is used to preclude a party from obtaining by evidence that which he has before expressly or positively denied, or disproving that which he has expressly or tacitly admitted, when the other party has acted on the faith of the admission or denial in such a manner that he will be injured unless the same is held conclusive. An admission by a person as to the law, or as to the legal effect of his contract, is never held toestop him. It is also necessary that the fact should be one of which the party claiming the benefit of the estoppel was ignorant. There can be no such contention in this case. Both parties knew all the facts of the transaction at the time it occurred, and the admission, if any, was in regard to the law, andi not the facts. The contention that the contract of sale had been executed, and the statute of frauds could not be pleaded against it, as well as the contention that the defendant is liable for money paid out and expended at his request, are both founded upon the theory that the defendant was bound by the constitution and by-laws, and that the action of the proper committee of the Consolidated Exchange, in completing the contract, had a valid basis in. law. But, as before shown, this was not the case, and therefore they cannot prevail. The judgment should be affirmed, with costs.