BORLAND V. ZITTLOSEN.
it matured Zittlosen became insolvent, and the note was protested,
and has never been paid. The libelant died, and the case was continued by his administratrix. It is contended that the other defendants are discharged, on the ground of equitable estoppel, because the master, before remitting to Zittlosen, the ship's husband, several sums of money in August, 1883, amounting altogether to about $7,500, caused inquiries to be made of Borland, through Kruger, whether his 1:>ill for supplies had been paid; and that Borland, in answer to these jnquiries, stated that it had been paid or settled by Zittlosen; and that in consequence of this statement the remittances were sent by the master to Zittlosen; and that but for such assurances the master would have paid the libelant's bill through some other channel, as some question already existed as to Zittlosen's credit. If a material-man voluntarily takes a note or bill from the ship's husband, or one of the part owners, knowing that he might have the money from the other owners jointly liable, and the situation of the latter is afterwards altered forthe worse through their dealings with the agent, no doubt the owners are discharged. Macl. Shipp. (3d Ed.) 113, 186; Strong v. Hart, 6 Barn. & C. 160. But in this case the evidence does not suggest any intimation to Borland that he might have procured the money from any other person than Zittlosen. He was the only authorized channel of payment. So far as appears, Borland, in taking Zittlosen's note, did the best he could to obtain payment. The master was away; Booth, I think, was known not to be really interested in the matter ; and Kruger was known not to be the person from whom payment was expected, or in any condition to pay. Taking the note of Zitt· losen was, therefore, .not in itself any discharge of the other defend· ants. In re The Salem's Cargo, 1 Spr. 392; Bottomley v. Nuttall, 5 C. B. (N. S.) 122; Muldon v. Whitlock, 1 Cow. 290; v. Donaldson, 9 Q. B. Div. 623. The estoppel relied on is based upon the alleged statements or admissions of Borland, which three witnesses testified were made by him to Kruger in July, 1883, to the effect that he had been paid, or had been settled with, by Zittlosen. If the proofs satisfied me that statements of this kind had been deliberately made by Borland, and made either with the design to influence the remittance of funds to Zittlosen, or under circumstances that Borland might reasonably have supposed would influence the conduct of the other owners, and that the other owners, relying upon these statements, had afterwards remitted fnnds to Zittlosen to their prejudice, no doubt a legal estoppel would be made out against any subsequent claim upon the other owners; for the ,remittance and the consequent injury would in that case have been chargeable to the wrongful misrepresentation of the creditor. Thomson v. Davenport, 9 Barn. & C. 78; Robinson v. Read, ld. 449; Irvine v. Watson, 5 Q. B. Div. 414; Davison v. Donaldson, 9 Q. B. Div. 623; Heald v. Kenworthy, 10 Exch. 739, 746; Berwind v. Schultz, 25 Fed. Rep. 912, 920; The Irtkington, post, 148.
Conceding that something of the purport alleged was communi. cated by Kruger to the captain, although that fact was not strictly or properly proved, and conceding that about $1,500 was afterwards remitted by the captain to Zittlosen, in order to constitute an equitable estoppel, or an estoppel in pllis, the proofs must show: (1) Reasonable certainty as to the misrepresentations alleged; (2) an intent that the statements should be acted on, or knowledge that the representation was one likely to be acted upon, or that it was of a nature and under circumstances calculated to the other party to his prejudice; (3) and that the other party was thereby induced to act upon it, and did act upon it, to his prejudice. Bigelow, Estop. (3d Ed.) 484,490, 541, 549. I am not satisfied that the facts and circumstances proved are sufficient to constitute such an estoppel in this case, for the following reasons: 1. Certainty as to the facts is the first requisite of such an estop. pel. Bigelow, Estop. 490; The Belle of the Sea, 20 Wall. 421, 430. Testimony as to naked admissions given by witnesses who, though not parties to the record, are in close sympathy and interest with the party calling them, is one of the most untrustworthy kinds of evidence. 1 Greenl. Ev. § 200. In Lench v. Lench, 10 Ves. 518, Sir WILLIAM GRANT says: "This is, in all cases, most unsatisfactory evi. dence, on account of the facility with which it may be fabricated, and the impossIbility of contradicting it. Besides, the slightest mistake or failure of recollection may totally alter the effect of the deo· laration." 'rhis was approved by the chancellor in Botsford v. Burr, 2 Johns. Ch. 412, and by STORY, J., in Smith v. Burnham, 3 Sum. 438. Under our present practioe, which allows parties to be wit· nesses, where such testimony is given after the death of the person alleged to have made the statements, so that only one side can be heard, it is liable to peculiar suspicion. Usually the witnesses cannot give the precise language, nor the whole of it. A little difference of expression, or a slight qualification omitted, forgotten, or suppressed, might neutralize all its legal effect. In the cases above referred to, the absence of corroborative circumstances, with some countervailing proofs, were held sufficient ground for disregarding it, leading to the conclusion, as STORY, J., observes, that "there may have been some mistakes and misapprehensions, to say the least, on the part of the witnesses as to the purport and effect of the conversation to which they testified." When there are no corroborative oircumstances, and the proofs show beyond controversy the incorrectness of the statements alleged, and that there was no motive to mistake the fact, it is more rational to suppose misunderstanding or mistake or inaccuracy in the testimony, than to suppose statements made which the circumstances show to be in the highest degree improbable, if not incredible. Such is precisely the situation of the libelant's claim here. At the time the statements are alleged to have been made by Borland, that is, in July, 1883, it is perfectly certain that not a dollar had been
paid upon his claim, and that no settlement had been made in reference to it; although it is probable from other testimony that some efforts had been made to obtain it. 'l'he note was not taken until in September. No motive is suggested that Borland could have had to state untruly that his claim was either paid or settled. Had it been intimated to him that the captain would send him the money for his bill, there is no possible doubt that he would have accepted the proposition at once. No such intimation was given him. 2. Whatever the conversation may have been, it is not stated that there was any suggestion to Borland that the inquiry was made in the master's behalf, or intended to be communicated to the master, or made with refArence to securing the payment of the libelant's bill; or that any remittances of money to Zittlosen were intended. Kruger, to whom the statements are said to have been made, was at the time largely indebted to the ship, and no payment or settlement was expected by Borland through him. So far as related, the conversation, even as testified to, would seem merely casual. Estoppels of this character are based upon the obligations of good faith. 'l'his ob· ligation is mutual, and requires that no estoppel be drawn from conversations merely, unless the person answering inquiries knows, or has reason from the circumstances to believe, that the action of others is likely to be influenced by his answers. Pierce v. Andrews, 6 Cush. 4; Bigelow, Estop. 484, 529, 541. There was nothing to indicate anything of this kind to Borland. Whatever the conversations referred to may have been, I am not satisfied that the testimony as to Borland's remarks fairly represents all that occurred. The remarks may have been misunderstood, or imperfectly reported, or not seriously meant. He could not have supposed or suspected that they would influence anyone's conduct. They may have been mere facetiaJ or persiflage, or made after the note had been taken in September,-too late to operate as an estoppel. 3. To constitute an estoppel it must further appear that the defendants have been legally prejudiced; that is, so substantially injured that it would be wtjust to allow the libelant's demand. The evidence fails to show this. The proof shows that both the other owners were indebted to the ship, and to Zittlosen, as ship's husband, farbeyolld all the moneys remitted by the captain, after the alleged statements of Borland. If the captain had paid Borland's bill, so much less would have been remitted to Zittlosen, and the liability of the master and of Kruger to him have been so much more. It is not claimed, and there is no reason to suppose, that the master would not have sent to Zittlosen the remaining $6,000. As a creditor of the ship he was entitled to that money. It was a matter of indifference to these defendants whether their indebtedness was to Zittlosen alone, or to Borland and Zittlosen. 'fhey have lost nothing by paying the whole $7,500 to Zittlosen, instead of paying some $1,500 of it to Borland. The fact that so large an amount of money, in excess of Bor-