Rowley v. Jewett

Beck, J.,

dissenting. — I cannot concur in the foregoing opinion of the majority of the court. I have not the time to enter into an extended discussion of the point upon which I differ from the other justices, and must content myself with a brief statement of my conclusions.

The opinion of the majority concedes that the plaintiff stands in the shoes of Sherman. I reach the conclusion, however, upon this ground, that, inasmuch as defendant acted upon the declaration of Sherman that the judgment had been paid, in surrendering the spi’ing wagon, plaintiff is estopped to deny the payment of the judgment. The doctrine of estoppel being applicable to the case, we will not inquire what was the value of the property surrendered. If of any value it supports the estoppel.

The case differs from cases wherein the creditor surrenders property held as security for the debt for which the surety is bound. The surety in such cases can claim nothing more *498than that the debt be regarded as paid pro tanto, to the extent of the value of the security surrendered. In this case the estoppel compels us to regard the whole debt as paid— that is, the declaration of the creditor that it is paid cannot be denied. In my opinion the authorities support the conclusion I have announced. See Carpenter v. King, 9 Met., 511, and notes to this case by Hare & Wallace, found in 2 American Leading Oases, pp. 380, 423, 434, 425, and authorities cited. The doctrine of estoppel may be invoked to protect a surety in an action at law, the same as in chancery. Carpenter v. King, supra; Leading Cases in Equity, Hare & Wallace’s notes, p. 546.