Dovale v. Ackermann — 39 N.Y. St. Rep. 517

Majority

p. 517

Nicot J. Dovale, Resp’t, v. Bernard L. Ackermann, Jr., et al. App’lts.

(Supreme Court, General Term, First Department,

Filed June 26, 1891.)

Headnote

Estoppel—Admissions—What constitutes.

Plaintiff advanced money to a firm to which defendant formerly belonged, and asserted a claim against defendant on the ground of such partnership. Defendant denied the liability, but promised to repay the money in monthly instalments of $100 each, and made several such payments. He then refused to make further payments unless plaintiff would sign a paper admitting that defendant was not legally obligated to pay the same; and that his promise of payment was purely voluntary, and that plaintiff would assert no claim against him. The plaintiff signed the paper, and the payments were continued. Held, that plaintiff was estopped by the writing from afterwards asserting a claim against defendant.

Appeal by defendants from judgment entered upon the verdict of a jury.

Coudert Bros. (Frederic R. Coudert and John N. Lewis, of counsel), for app’lts; James M. Lyddy, for resp’t

—It seems to me that the plaintiff in this case is estopped by the admissions contained in her letter of September 3, 1885, and by the receipt of the considerable sum of money which was paid on the faith of those admissions, from maintaining any action against Bernard L. Ackermann, Sr., on the ground that her loan was made to a firm of which he was a member.

The plaintiff sought payment from him upon the theory that he was a partner with his sons in the firm which received her money. He repudiated any such liability, but avowed his willingness to make good to her the amount of the loan by paying $100 a month. After making a number of these monthly payments, he seems to have been apprehensive that she might renew her original claim against him, based on the allegation of partnership ; and accordingly he drafted the letter of September 3, 1885, ana declined to pay her anything more unless the plaintiff signed it. This she did, and Mr. Ackermann, Sr., went on paying her $100 a month until May, 1886, when, as he says, he ceased the payments because he was unable any longer to continue them.

How the letter of September 3, 1885, contains a clear and unqualified admission that the senior Ackermann was under no legal obligation whatever to repay Mrs. Dovale the money which she had placed in the hands of his sons during his absence in Europe. By making that admission she induced Mr. Ackermann, Sr., to pay and acquired for her own benefit moneys which otherwise she could not have obtained ; and to allow her now to repudiate the statements contained in that letter as false would be to injure him to the extent of the aggregate amount of the subse

p. 518

qnent monthly payments. Here are the essential elements of an equitable estoppel by .admission, Trustees of Brookhaven v. Smith, 118 N. Y., 634 ; 30 N. Y. State Rep., 105, and, I think, the plaintiff’s letter should be deemed an insuperable obstacle to any recovery in her behalf against the senior Ackermann as a partner, unless it can be held that the plaintiff was forced to write the latter by duress.

There is no suggestion that there was any personal dures„s, but there is said to have been duress of goods, because the plaintiff was in straitened circumstances and Mr. Ackermann, Sr., told her that he would not give her a cent if she did not write the letter exactly as he wanted her to write it This was not enough to constitute duress of goods under any authority to which we have been referred, and it was error to leave any question of duress to the jury. See Hackley v. Headley, 45 Mich., 569 , per Cooley, J.. and Silliman v. United States, 101 U. S., 465 .

In the course of his charge the learned trial judge expressed the opinion that if Mr. Ackermann, Sr., was not a member of his sons’ firm, 1; then all these subsequent transactions between him and Mrs. Dovale were founded upon no consideration but were gratuitous and do not constitute a promise at which he is liable at law.” It does not seem to me clear that this view is correct. A consideration for the agreement to pay $100 a month may be found in Mrs. Dovale’s abandonment of her claim against Mr. Ackermann, Sr., in his capacity of partner, as evidenced by her letter of September 3, 1885.

In my opinion the judgment should be reversed and a new trial should be granted.

Yan Brunt, P. J., and Barrett, J., concur.