The report of the referee leaves it uncertain what was the latest date at which Carroll was in possession of the note; but it is apparent from the testimony that it must have been within a few days of his death. No transfer of the note by him is shown. The evidence fails to show satisfactorily even an attempted gift; although the widow stated to the plaintiff that her husband had given her the note. But the fact of the gift is not expressly sworn to ; the manner of it is not shown; nor does it appear that any delivery ever *47accompanied the donation. Nor could the husband, under the circumstances, make a valid gift of the note. He was indebted at the time, and his creditors had a right to his property, and notified the defendant not to pay to the widow. I think we must infer that the note belonged to James Carroll, at the time of his death. If so, the plaintiff does not make title to it. He received it from the widow, and she had no right to transfer it. It could only be done by the legal representative of Carroll, and none such was ever appointed. (Edwards v. Campbell, 23 Barb. 423. Woodin v. Bagley, 13 Wend. 453. Beecher v. Crouse, 19 id. 306. Jenkins v. Freyer, 4 Paige, 47.) An administrator may yet be appointed, and in that case the defendant would have no legal defense to an action brought by him upon this note. The defendant is not estopped by his payments to Mrs. Carroll and to the plaintiff. They are proper evidence for a jury to consider, but are not in their nature or effect conclusive. So far as the plaintiff is concerned, the case lacks one of the most material ingredients of an estoppel, to wit: that the defendant by his declarations or conduct induced the plaintiff to become the purchaser of the note. It is a fallacy to suppose that this inducement took place by the defendant having indorsed on the note in his own handwriting some of his payments, which handwriting was known to and inspected by the plaintiff before he purchased the paper. This does not amount to a representation by the defendant io the plaintiff, on the faith of which he'has a right to act. The representation, if it be one, was not made at the time, nor to the plaintiff, nor in his presence or hearing ; nor for the purpose of inducing action on the part of the plaintiff; nor upon an occasion when the defendant spoke or was called upon to speak. (See Reynolds v. Lounsbury, 6 Hill, 534; Martin v. Angell, 7 Barb. 407; Pennell v. Hinman, Id. 644.) Estoppels, as they operate to exclude the truth, must be strictly construed. If the defendant had stood by, at the time of the transfer of the note to the plaintiff by the widow, and the latter had then represented the *48note as owing to her hy the defendant, and he had not denied it, or had acquiesced in it, and the plaintiff had 'taken the note upon such representation, that would have constituted an estoppel. But the defendant was not present: he was ignorant of the representations made by Mrs. Carroll, and in no way contributed to induce the plaintiff to give confidence to them. All that he did was, on a previous occasion, to make payments upon the note, to the widow. Perhaps, at the time he did so, he was ignorant of the facts ; perhaps he was himself induced by- false representations to suppose that she was the bona fide holder and owner of the note; perhaps he did it under the expectation and promise by her that she would take out letters upon the estate and credit him with the ' payment in the capacity of administratrix. We can imagine a variety of reasons which might have operated upon him to induce him to make the payment, quite consistent with the absence of any legal obligation to do so, when the facts be- ’ came fully known.
Mor are the payments to the plaintiff himself an estoppel upon the defendant. They are strong evidence of a supposed legal liability, but not a conclusive bar. He may have been ignorant of the facts; he may not have hád time to inquire; and the amount of the payment may have been so small as to be a matter of indifference whethér it was legally collectable or not. There is no just reason for compelling a party to pay the residue of an unjust demand, simply because he has paid a portion of it without objection. The whole doctrine of estoppel rests upon this foundation, that a party has refused to speak when he ought to have done so, and has omitted to make known important facts, the knowledge of which would have induced a different course of action, from what would have taken place if all the facts had been disclosed. Although the doctrine of estoppel is not always carefully expressed, the cases all go upon the assumption that the party. estopped is guilty of a false statement, or of a concealment of material facts, at a time when he has an opportunity and is *49called upon to speak, which representation or concealment has had a material influence upon the conduct of a third party who would now suffer injury without fault on his part, if the real truth were disclosed and allowed to have its legitimate effect. (Welland Canal Company v. Hathaway, 8 Wend. 480. Desell v. Odell, 3 Hill, 215. Lowry v. Tew, 3 Barb. Ch. 407. Outwater v. Dodge, 6 Wend. 397. Tylee v. Yates, 3 Barb. 222. Petrie v. Feeter, 21 Wend. 172. Truscott v. Davis, 4 Barb. 495. Lewis v. Woodworth, 2 Comst. 512. L’Amoreux v. Vischer, Id. 281.)
[Albany General Term, September 6, 1858.Wright, Gould and Hogeboom, Justices.]
The judgment should he reversed and a new trial granted, with costs to abide the event.
Gould, J., concurred.
Wright, P. J. dissented.
Judgment reversed.