Wood v. Wood

TYSON, J.,

dissenting. — I think it is entirely clear from the decree dismissing the former bill when, it is react in connection with thd pleadings in the cause and the opinion of tire chancellor, that- the dismissal was for a variance1 — a failure to1 prove the partnership; as alleged.

“It is elementary that if from the decree in a cause there be uncertainty as to what was really decided, resort may be had to- the pleadings and to the opinion of the court to throw light upon the subject.” — National Foundry & Pipe Works v. Oconto Water Supply Co., 183 U. S. 234.

The opinion of the chancellor was a,s follows: “On consideration of tire legal evidence the court: is of opinion that M. A. Wood, P. S. Wood and B. W. Wood nauredl in the bill were not partners of the firm of J. P. Wood & Co. and not liable to account to> complainant as prayed in this suit;” then follows, “The court is further of the opinion that, the complainant is not entitled to the relief for which he' prays;” following these words, is tire decree dismissing the bill.

On appeal of that cause to1 this court, it was held that the variance was fatal and justified the dismissal of the bill, without reference to whether there was anything due on the mortgage. — Wood v. Wood, 119 Ala. 183.

It is only by argument or inference that the second clause of tire opinion of the chancellor, quoted above, can be saidi to have had reference to' the question of indebtedness, vel non, on. the mortgage debt, and that the dismissal was on that account

*567Estoppels must be certain to every intent and. if upon the face of the record it is left to conjecture or inference as to whether the dismissal was because there was nothing due upon the mortgage or because of the variance, there is no estoppel. — Bigelow on Estoppel (5th ed.), 51-61; Russell v. Place, 94 U. S. 606; Hooker v. Hubbard, 102 Mass. 245; Steam etc. Co. v. Meyrose, 27 Fed. 213; Burlen v. Shannon, 96 Am. Dec. 733; Gilbreath v. Jones, 66 Ala. 132; Greenwood v. Warren, 120 Ala. 78.

The question here is, not whether the issues made by the pleadings were broad enough to present for consifiteraticn and decision indebtedness vel non upon the mortgage debt, but it is Avhether that disputed question was necessarily tried and determined. And the fact that it was actually tried and determined must appear with reasonable certainty, and not as a; mere matter of inference or argument. — Strauss v. Meertief. 64 Ala. 310.

Even a probability will not supply the place of definiteness and certainty, and where an inference is relied! upon, it must be a necessary and an irresistible one. How can it be said with any degree of certainty that the dismissal was not on. account of the variance, but on account of the finding by the chancellor that there was nothing due upon the mortgage, or on account of both? I do not think the record furnishes a sufficient answer to this inquiry, and, therefore, entertain the opinion that the estoppel relied upon by complainant has not been shown. The inference that the chancellor’ found nothing to he due upon the mortgage is not a necessary one to uphold the decree. On the contrary, the decree, can well be supported upon his finding that there was a. material variance. And this, I entertain no- doubt, was the ground of dismissal of the bill.