Drake v. Eggleston

ON PETITION FOR REHEARING

Crumpacker, J.

— The appellants’ petition for a rehearing calls our attention to two inaccuracies in the resume of the record in this case as stated in our initial opinion. Although wholly immaterial to a decision of the controversy we take this opportunity to correct the same. The appellants’ title to the land in controversy *314vested in them through descent and not by will and judgment for the appellee on the second paragraph of his cross-complaint, which is not questioned in this appeal, is $378.14 and not $731. Confessing a lack of meticulous care in our statement of immaterial facts we proceed to a consideration of appellants’ petition on its merits.

We are charged primarily with justifying the trial court’s decision through the indulgence of inferences arising or flowing from the direct and positive evidence in the record. The appellants do not challenge such inferences as unreasonable, remote or speculative, but rest their contention on the bald and uncompromising statement that equitable estoppel cannot be found by inference or presumption however reasonable or compelling. In support of this principle we are referred to authorities from Lord Coke to the pronouncement of this court in Wilkerson v. Wood (1924), 81 Ind. App. 248, 143 N. E. 166. If there is any thread of universally applicable doctrine running through these decisions it seems to be that no man should be concluded from setting up the truth unless it clearly appears, without resort to argument or dubious inference, that his own conduct has led another to act to his detriment.

If a case for equitable estoppel is rounded out by an inescapable or compelling inference arising from established facts, it seems to us that such inference has all the dignity and probative value of direct and positive testimony, and there is no basis, in reason or logic, for its exclusion from consideration. See Johnson v. Western etc., Mining Co. (1923), 81 Ind. App. 79, 140 N. E. 559; 19 Am. Jur., Estoppel, §43.

*315• In our initial opinion we made this statement: “However, immediately after the lease was executed, and notwithstanding its terms, the appellee indicated to Drake that he intended to do all the drainage and clearing work contemplated by the lease immediately and in one operation rather than in yearly installments to which Drake affirmatively agreed.” The appellants object to that part of such statement which reads: “to which Drake affirmatively agreed,” and say there is no evidence of any such agreement on Drake’s part, and that our conclusion in that regard could have been reached only through inference. However, the record discloses that after the appellee had stated what he proposed to do, notwithstanding the terms of the lease, he was asked this question: ■ “Did Mr. Drake say anything to that?”' To this the appellee replied: “I don’t recall the words he said; it was an approval of it.” Thus, we submit that our conclusion that Drake affirmatively agreed to the appellee’s proposal was reached without the aid of inference and was based on direct and positive testimony.

The appellants next objected to our statement that “Acting on this understanding the appellee did such work in July and August, 1945.” They say we could have arrived at such a conclusion only through inference as it is unsupported by direct testimony to that effect. It is true that the appellee did not testify in so many words that he relied upon the understanding he had with Drake, and therefore did all of the work contemplated by the lease in one operation, rather than in installments as the lease provided. Nevertheless, he did exactly what he and Drake had agreed upon, and it seems inconceivable that he did so without reference to such agreement. Actions speak as well as words, and when a mental process is in issue *316they may even overcome direct testimony to the contrary. As the appellee so aptly says: “Where the issue is equitable- and involves nothing but fair dealing, any technical rule requiring Eggleston to state expressly, T relied on what he said’ seems foolish,” when the inference that he did so is inescapable.

-...■Still insisting on their contention that equitable estoppel cannot. >be found on inference the appellants say that -at no time after the lease in suit was executed was there anything said between the parties concerning the credit the appellee was to have for the $10,000 in work he proposed to do in 1945, and that we recognized such to be the state of the record when we said: “. . . it is reasonable to assume that he (Drake) knew the appellee would expect credit.” The written lease in suit was affected in only one particular by the conversation between the parties immediately after its execution. Drake-surrendered his right to have the contemplated construction work done in ten installments but otherwise the rights of the parties remained as provided by the lease.

■ Therefore, we do not need to indulge in inference to say that Drake knew that the appellee expected credit at the rate of $1,000 per year because the lease so provided.

■ Finally, the appellants contend that the doctrine of estoppel in pais has no application where no fraud, con-i' cealment, or attempt to mislead is proven, and that, the evidence in this case shows none. We accept the principal of law as stated but are of the opinion that the meaning of the word “fraud” cannot be limited to a situation where one entertains a preconceived design to circumvent or cheat another. It includes a breach of duty, independent of moral guilt, which the law declares fraudulent because of its ten*317dency to violate confidence or deceive others. Budd v. Board of Commissioners of St. Joseph County (1939), 216 Ind. 35, 22 N. E. 2d 973; Haywood Pub. Co. v. West (1941), 110 Ind. App. 568, 39 N. E. 2d 785; 37 C. J. S. (Fraud), §2c.

While the facts in this case may not be sufficient to show actual fraud involving an intent to deceive they do show fraud in law, which includes conduct the end result of which is unconscionable, and that is sufficient to invoke the doctrine of equitable estoppel.

Rehearing denied.

NOTE. — Reported in 108 N. E. 2d 67 and 901.