Andrews v. Ætna Life Insurance

In considering the question of estoppel, we must notice that the only ground of action alleged by the plaintiff in the first suit is on the clause iu question ; and that the answer positively demos the validity of this clause. On that denial rests the defence, including the counter-claim. Wo have then the first clement of an estoppel in pais, that of an assertion inconsistent with the proposed evidence or claim.

Next, we have the discontinuance of the former suit and the payment of the costs thereof, and the commencement of the present *166suit; actsi douo iu reliance of the defendants statements, both in its letters and in its pleadings. The defendant knew whether, or not, the insertion of the clause was authorized. It alleged that the clause was inserted without authority. The plaintiff acted on that assertion, both iu the former discontinuance and in the present suit. In Trustees v. Williams (9 Wend., 147), a defendant in ejectment was held estopped by his admission, made when tho declaration was served, that there was not sufficient property on the premises liable to distress. (See Finnegan v. Carraher, 47 N. Y., 493, and other cases there cited.)

And, lastly, it is scarcely necessary to say that the plaintiff will be injured by permitting the defendant to disprove its former assertion. He has lost the costs of the former suit and may be defeated in the present by the permitting of such proof.

Thus the three elements necessary to an estoppel, as defined in Dezell v. Odell (3 Hill, 215), are seen to exist in this case. (See, also, Railway Co. v. McCarthy, 9 U. S. Rep., 258.)

In answer the defendant asserts that it had recognized the policies as they now exist. There is no such evidence. The only communication from the office of the company, after the plaintiff had called their attention to this clause, is the letter of January 15, 1877, in which it repudiates tho clause and says that it know nothing about the clause until recently. Tho letter of tho Syracuse agent says that agents are hot allowed to alter or change tho conditions of tho policy. Certainly not, then, to give validity to a clause inserted without authority. There is no evidence then that the company accepted premiums, with tho knowledge of the existence of this clause. And it denied such knowledge.

Nor did the company ever admit its liability on this clause. In order to induce the plaintiff to continue to pay them money, its secretary writes an elaborate letter to prove that the policies have no value, but that the company has great generosity. Yet that letter contains the positive assertion that the clause was inserted without authority. And this company now puts its own agent on the stand to prove that this assertion was false — that he was authorized by its own president to insert the clause. Whether the secretary willfully or carelessly made this statement, which the company now say was false, we do not know.

*167If the defendant (as it says the fact is), after having received the plaintiffs money for several years, discovered that the policies contained the clause in question, it had two courses before it. It might expressly, or by implication, accept the alleged unauthorized act of its agent, and might thus ratify it, or it might repudiate the act by disavowing the authority. It could not do both; and it chose to do the latter. It desires, however, to disavow the act so as to be relieved from paying the equitable value, and then to ratify the act so as to be relieved from repaying the money it has received. The judgment should be affirmed, with costs.

Judgment affirmed, with costs.