dissenting. I wholly agree with the recitation of facts set out in the majority opinion, but I dissent from that opinion because I draw different legal conclusions from those facts.
First, it is my opinion that the notice requirements were satisfied with respect to the public sale of collateral, and thus, on that basis, I would affirm that portion of the judgment with respect to both Mr. and Mrs. Walker. Second, with respect to the private sales following the auction, I think the result reached by the trial court concerning Mr. Walker was correct, but should have been addressed in terms of estoppel rather than a “post-default agreement” between the parties. Third, I do not think Mrs. Walker received adequate notice of the private sales, nor do I think that she is estopped from asserting lack of notice. Consequently, appellee should not be permitted to obtain a deficiency judgment against Mrs. Walker with respect to the items sold at private sales.
I.
Notice — Public Sale
The Code provides that “reasonable notification of the time and place of any public sale. . . shall be sent by the secured party to the debtor,. . . .” Ark. Code Ann. § 4-9-504(3) (1987). In addition, the parties had previously agreed that “notice will be considered commercially reasonable if provided by first class mail . . . [and] mailed ten (10) days before the date of the intended disposition.” As set out in the majority opinion, appellee hand-delivered a document to the appellants on September 27, 1988, eleven (11) days before the auction. It provided, “The equipment will be included in our auction sale on October 8th, 1988 at Sheridan.” The hand-delivery of that document, informing appellants of the date and town where the auction would be held, constituted reasonable notification of the “time” and “place” of the public sale. If appellants wanted a more specific time and location of the sale, they could have asked appellee’s representative at that time or at any time before the October 8 sale date. Additionally, appellee mailed the printed auction announcement on October 3, 1988, five days prior to the auction, which established the more precise time and location for the auction. Finding that the notice requirements were satisfied with respect to the public sale, I would affirm the trial court on that basis, and not on the basis of a “post-default agreement.”
II.
Notice — Private Sales
With respect to the two private sales occurring after the auction, the Code provides, “reasonable notification of the time after which any private sale. . . is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale.” Ark. Code Ann. § 4-9-504(3) (1987). There is nothing in the record which would constitute a post-default statement, signed by the appellants, renouncing or modifying their right to notification of sale; and that is the only type of “post-default” agreement contemplated by § 4-9-504(3) (1987), and therefore allowed by § 4-9-501(3) (1987), which provides in pertinent part:
(3) To the extent that they give rights to the debtor and impose duties on the secured party, the rules stated in the subsections referred to below may not be waived or varied except as provided with respect to compulsory disposition of collateral (§ 4-9-504 ...),...:
(b) Section 4-9-504(3) . . . which deal with disposition of collateral;
Further, I agree with the majority that the September 27, 1988, notice to appellants omitted any reference to private sales to be held after the auction, and no subsequent written notice was given to appellants concerning the private sales.
I depart from the majority opinion, however, concerning the applicability of the doctrine of estoppel in this case. The majority addresses the doctrines of waiver and estoppel as if they were entirely interchangeable. While I agree that the distinctions between an implied waiver and equitable estoppel are sometimes blurred, I think it is important to preserve the distinctions. Waiver involves a voluntary and intentional abandonment or relinquishment of a known right. Worth v. Civil Serv. Comm’n, 294 Ark. 643, 746 S.W.2d 364 (1988); 28 Am. Jur. 2d, Estoppel & Waiver § 30 (1966). I agree that there was no express waiver here because, as just discussed, § 4-9-504(3) requires such a waiver of notice to be a written renunciation or modification.
Equitable estoppel, however, is a term applied to á situation where, because of something which he has done or omitted to do, a party is denied the right to plead or prove an otherwise important fact. It involves both, not just one, of the parties, and the party claiming it must show that it detrimentally changed its position based upon the other party’s conduct. Worth, supra; 28 Am. Jur. 2d, Estoppel & Waiver § 27 (1966). The Code recognizes and permits the application of the doctrine of estoppel. See Ark. Code Ann. § 4-1-103 (1987) which provides, “Unless displaced by the particular provisions of this subtitle, the principles of law and equity, including. . . the law relative to. . .estoppel. . .shall supplement its provisions.” (Emphasis added.) Further, in Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W.2d 532 (1974), we recognized the applicability of the doctrine of estoppel even though it was not called for in that case:
We are committed to the doctrine that, since estoppel bars the truth to the contrary, the party asserting it must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference and nothing can be supplied by intendment.
Further, while we discussed the issue in terms of notice being “immaterial” in Pine Bluff PCA v. Lloyd, 252 Ark. 682, 480 S.W.2d 578 (1972), it seems to me the real basis for that opinion lies in the doctrine of equitable estoppel. If Lloyd could be distinguished solely on the basis that it involved perishable collateral, it would not have been necessary for this Court to have relied so heavily on the finding of fact that H.G. Lloyd had made the sale. See also., Ralston-Purina Co. v. Bertie, 541 F.2d 1363 (9th Cir. 1976); Appleton State Bank v. Van Dyke Ford, Inc., 90 Wes. 2d 200, 279 N.W.2d 443 (1979); Umbaugh Pole Bldg. Co., Inc. v. Scott, 58 Ohio 2d 282, 12 Ohio Ops 3d 279, 390 N.E.2d 320 (1979); Commercial Credit Corp. v. Wollgast, 521 P.2d 1191 (Wash. App. 1974); and Nelson v. Monarch Inv. Plan, Inc., 452 S.W.2d 375 (Ky. 1970). Finally, although not controlling, I find the case of Pollack v. Pulaski Bank & Trust Co., 30 Ark. App. 20, 781 S.W.2d 497 (1989) persuasive. Consequently, I would adopt the reasoning of Pollack on the issue of estoppel, rather than overruling it as the majority has done.
Accordingly, because it is undisputed that Mr. Walker engaged in discussions with appellee concerning the two private sales, even refusing one offered price for some time; Mr. Walker agreed to the sales; and appellee relied on those agreements and changed its position to its detriment with respect to that collateral, I conclude that Mr. Walker should be estopped to assert any defense concerning lack of notice.
III.
Notice — Mrs. Walker
The only evidence concerning Mrs. Walker’s knowledge of the private sales was that her husband “told me that Mr. Lamb [appellee’s representative] had called him and told him that they were getting ready to sell this equipment. . . .’’The next day she received a letter informing her that the equipment was sold. For all of the reasons previously discussed it is clear that Mrs. Walker neither received nor waived notice under the applicable code provisions. Further, while it is true that inaction will sometimes serve as the basis for equitable estoppel, the facts do not support application of that doctrine to Mrs. Walker. In short, she did not engage in the discussions concerning the private sales; she did not agree to them; and one day’s inactivity in objecting to the agreed upon sales does not provide the strict proof required for appellee to be able to assert the doctrine with respect to Mrs. Walker.
In sum, I would affirm the trial court’s ruling that Mr. Walker is liable for the entire deficiency, but I would reverse the ruling to the extent that it also found Mrs. Walker liable for the entire deficiency. Her liability should be reduced by the sums received at the two private sales, $6,885 and $8,000, for a total reduction of $14,885.
Hays and Glaze, JJ., join in this dissent.