Assume that the appellant's promise, agreement or statement, whichever you choose to call it, that he would not plead the statute of limitations, might have been regarded as an express promise to pay the debt, or as an acknowledgment of the debt as subsisting, from which a promise to pay might have been implied before the Code; or assuming that, had such promise, agreement or statement been in writing, it would have been sufficient evidence of a new or continuing contract, within section 110 of the Code; that the respondent cannot use the promise, agreement or statement as an estoppel, or by way of estoppel, is not a sequence of either assumption.
True, the promise could not be actually used both ways in the same case; but what I mean is, that it does not follow that it cannot be used or received as an estoppel, because, had it been in writing, it would, or might have been, sufficient evidence of a new or continuing contract, within section 110 of the Code.
But the promise was not in writing, and therefore could not be used by the respondent under section 110 of the Code; and the question is, whether it could be used by him by way of estoppel.
I think, clearly not. If it estops the appellant, what does it estop him from? Why, from effectually pleading the statute of limitations. Nothing more, or less, or other. Now, one may waive, or lay aside, the protection or benefit which his position gives him the right to claim under a statute; that is, one owing a usurious or outlawed debt may pay it, or he may, I assume, by his conduct or words estop himself from proving that the debt is outlawed, or is usurious; but *Page 457 one cannot estop himself from pleading the statute of limitations, or the statute against usury or any other public statute. One may lay aside or waive the protection of a statute, but he cannot lay aside or suspend the statute; and to permit one to estop himself from pleading a statute, would in effect be permitting him to thwart or suspend the operation of the statute.
Blackstone says (3 Com., 308), that an estoppel may be a special plea in bar, "which happens where a man has done some act, or executed some deed, which estops or precludes him from averring anything to the contrary." That is, applying what Blackstone says to this case, the plaintiff and respondent might have pleaded in bar of the defendant's plea of the statute of limitations, that he had done some act or excuted some deed which estopped him from effectually pleading the statute; that is, from proving that the statute had attached.
One by his conduct, by act, or words, may estop himself from proving or showing that a different state of things, or of facts, existed than he misrepresented or induced another party to believe existed at the time of his misrepresentation or act.
The defendant's promise or statement in this case, which ever you call it, has none of the elements or features of an estoppel. It is a promise or agreement not to do a thing in the future. Call it a statement, and it cannot be tortured into being anact of estoppel, within the meaning of the doctrine of estoppel, or within any authoritative precedents of the application of that doctrine.
The defendant's promise or statement was in words, of course; but it would be absurd to call it a representation or statement of, or as to, any past or then present fact or state of things. There was no representation or deception as to any then existing state of things; indeed, no representation at all. No pretence on the part of the plaintiff of ignorance of any fact known to the defendant.
If the plaintiff has been deceived or injured, he has been deceived and injured by the defendant's pleading the statute *Page 458 of limitations after promising not to do so; that is, by the breach of his promise or agreement; and every one who takes a promise for the payment of money, or to do or not do a certain thing, expecting the promise to be kept, is liable to be deceived and injured in the same way.
Will it be pretended, that a promise not to plead or set up usury, or infancy, or coverture, whether in the note evidencing the debt, or outside of it, would estop or preclude the promisor from effectually pleading and proving the usury, or infancy, or coverture? Nay, further, if the defendant is estopped by his promise not to plead or avail himself of the statute of limitations, why is not the giver of every note for a usurious loan estopped, by the note, from pleading and proving the usurious agreement? Certainly, it may be said, that the party making the loan and taking the note relied upon the promisor's keeping his promise and paying the note; and certainly the note implies a promise not to plead or take advantage of the law against usury.
The substance of all that has been said by me in this case, if not said by Judge SELDEN, was implied in, or follows from what he did say, in Crawford v. Lockwood (9 How. Pr. R., 550, 551); and whatever there be in the opinions in Gaylord v. Van Loan (15 Wend., 308), and The Utica Ins. Co. v. Bloodgood (4 Wend., 652), inconsistent with what was said by Judge SELDEN on this question of estoppel in Crawford v. Lockwood, should be regarded as not good law. (See also Kneettle v. Newcomb, 31 Barb., 169.)
The affirmance of the judgment in the last cited case (22 N.Y., 249), on the ground upon which a majority of the court affirmed it, was no way inconsistent with the views expressed by Judge SELDEN in Crawford v. Lockwood, supra, and who was for affirming the judgment in Kneettle v. Newcomb, for the reasons stated by him in Crawford v. Lockwood.
The judgment of the Supreme Court, reversing the judgment of the County Court, should be reversed.
All concur for reversal. *Page 459
Judgment of the General Term reversed, and that of the County Court affirmed.