1 Sherrod V. Laugdon, 21 Iowa, 518 ; Poillou V. Secor, Gl n. Y. 456.

BY ESTOPPEL. 63

been a member of a firm but withdraws from it without giv-

Ing notice of his withdrawal to those who had previously been

dealing with the firm : he is estopped to deny that he is a

member as against those who continue to deal in the belief

that he is still a member.^ Again, a third person without de-

fendant's knowledge or consent holds him out as a member of

a firm : defendant is not estopped to deny the partnership.^

Estoppel is the bar which the law raises to prevent a man

^from proving that a fact is contrary to what he represented it

•to be.^ It is based upon the idea that when one man induces

another, or aids to induce another, to believe in the truth of

that which appears to be true, he ought not afterward to be

permitted to deny that it is true, if the other has been misled

by the representation to his damage* " It proceeds upon the

ground that he who has been silent as to his alleged rights

when he ought in good faith to have spoken, shall not be

heard to speak when he ought to be silent." ^ The old notion

that " estoppels are odious," based upon the technical estoppels

by record or by deed, has no application to estoppels based

upon misrepresentation or upon conduct equivalent to misrep-

resentation.^

The misrepresentation may be made by express statement

or by conduct which the reasonable man would construe as

equivalent to an express statement. The estoppel may there-

fore arise from contract, or from words or conduct,'^ and the

words or conduct may consist in express representations or

in implied representations.^ The essence of estoppel in pais

is that a false impression has been created by one man upon

the mind of another as to the existence or non-existence of

• Stimson v. Whitney, 130 ^lass. 591 ; Arnold v. Hart, 176 111. 442.

2 First X. B. V. Cody, 93 Ga. 127; Marschall v. Aiken, 170 Mass. 3.

8 Ewart on Estoppel, pp. 3-4.

* Pickard v. Sears, 6 A. & E. 469 ; Ewart on Estoppel, pp. 5-7.

5 Morgan v. Railroad, 96 U. S. 720 ; Burkinshaw v. Nicolls, L. R.

App. Cas. 1004.

6 Ibid. ; Horn v. Cole, 51 N. H. 287.

'' Bigelow on Estoppel (5th ed.), 453.

8 Ibid., 556, 570.

64 FORSIATION OF AGENCY

some fact, upon the strength of which the latter is induced to

change his legal position.

Wliere the representation is made by cxpi'css statement, it

is not necessary, in ordei- to \\-ork an estoppel, that the one

making the statement should know it to be false, or should

even make it recklessly, consciously ignorant of its truth or

falsity.^ He may make it in good faith, believing it to be true,

and yet be estopped by it. It is enough that ho may reasonably

anticipate that the other i)arty will act upon it. Where, how-

ever, the estoppel is based upon the silence or non-action of

the one sought to be estopi)ed and the niisrei)rescntation of

some third party, the cstop))el will not be raised against the

former unless he knows that such misrepresentation is actually

being made.^ For example, a third party represents that

defendant is a partner with him: defendant is not estopped

to deny this unless he has stood silent, knowing the misrepre-

sentation to be made.^ Again, defendant is a by-stander while

an auctioneer sells goods to plaintiff which, in fact, belong to

defendant : the latter is estopped to set up his title, if he knew

the misrepresentation as to ownership was false, but not if he

was ignorant of his own title.*

В§ 52. Application to the lavy of agency.

The application of this doctrine to the law of agency is of

the fii'st importance. It may be involved, not only in the

question as to the existence of the agency, but also in the

question as to its nature and extent. Heretofore we have

seen that a ])rinci})al may be bound by the act of an agent,

either because he authorized it or because he ratified it. We

have now to observe that he may be bound, when he neither

authorized nor ratified, upon the doctrine that he has, by his

representations or conduct, led third persons to believe that

the agent possessed the requisite authority, and is therefore

estopped to deny it.

1 Brookhaven v. Smith, 118 N. Y. 634; Stevens v. Ludlum, 40 ^linn.