though there is neither of these elements.12 And this is no more than right. 13 It should be observed, however, that where conduct rather than words is relied on as constituting a false representation, the conduct can hardly be considered such if the party against whom the estoppel is claimed is ignorant of the facts which make his conduct deceptive. His conduct is like the use of ambiguous language in ignorance of the facts which make it ambiguous.14 The peculiarity of a promissory estoppel is that there is no misstatement of an existing fact, but merely a promise, agreement, or permission for future conduct. For the ordinary purposes of estoppel this is not enough. The only representation of existing fact is that a promise has been made or permission given, and an estoppel to deny this affords no help to the promisee, unless it is further held that a promise when the promisee has acted in reasonable reliance thereon must be kept. 12 In Prickett v. Sibert, 75 Ala. 315, 319, the court said: "Declarations or admissions, deliberately made, are conclusive upon the parties making them, in all controversies involving their truth between him and the person whose conduct he may knowingly influence by them. It is not of importance, whether the declaration or admission is made innocently or fraudulently; whether in point of fact it is true or false; it is the fact, that another has been induced to act on it, and must suffer injury if its truth is gainsaid, that renders it conclusive." So in Criley v. Cassel, 144 Ia. 685, 123 N. W. 348, 349, the court said: "A party may not deny that which he has solemnly asserted to be true when such denial will prejudice one who has relied upon his former statement. Hubbard v. Hartford Ins. Co., 33 Iowa, 325, 11 Am. Rep. 125. And he will be estopped, although he was in error as to the truth, if his statement was intended to, and did, influence another to act thereon. Smith v. Cramer, 39 Iowa, 413; Kirchman v. Standard Coal Co., 112 Ia. 668, 84 N. W. 939, 52 L. R. A. 318." In Pearson v. Hardin, 95 Mich. 360, 387, 54 N. W. 904, the same view is expressed:-"The doctrine of estoppel in pais had its origin in willful misrepresentation. Under the genial influence of courts of equity the rule has been much extended, and to-day includes mistaken and ignorant misrepresentation, and even silence, wherever a clear duty to know and speak the truth exists." See also Carr v. The London & Northwestern Railway Co., L. R. 10 C. P. 307, 317, quoted with approval in Tomkinson v. Balkis Consolidated Co., [1891] 2 Q. B. 614, 619; and the definition of Lord Blackburn in Burkinshaw v. Nicolls, 3 App. Cas. 1004, 1026, quoted with approval in Tomkinson v. Balkis Consolidated Co., [1891] 2 Q. B. 614, 623. 13 See infra, §§ 1508, 1510. 14 Stiff v. Ashton, 155 Mass. 130, 133, 29 N. E. 203; Woodward v. Tudor, 81 * Pa. 382, 394. Though many contrary expressions may be found, they are generally repeated from early cases and are not necessary for the decision. Such is not the general rule in regard to promises; 15 but, as indicated in the preceding sections, it is true of promises to excuse conditions and to some extent of promises to surrender rights. Nor is it material here, though it is for establishing fraud, that there shall be any purpose, at the time when it is given, to break the promise or to withdraw the permission. If knowledge of any facts were necessary to a promissory estoppel, it would be not knowledge of the truth or falsity of a fact represented, but knowledge of surrounding circumstances making it desirable or otherwise to give the promise or agreement or the permission forming the basis of the estoppel. That there is always necessity for such knowledge cannot be admitted. The fundamental basis for the estoppel is the justifiableness of the conduct of the party claiming the estoppel. His reliance is equally justifiable whether the party estopped knows or does not know all the material facts bearing on the matter, provided that he himself does not know such facts which he fails to disclose. If an insurer gives permission to the insured to keep gasoline on the insured premises, though to do so is forbidden by a condition in the policy, and the insured thereupon keeps a quantity of the substance which leads to the destruction of the building, it surely can be no defence to the insurer that when permission was given he was ignorant that on adjoining property dangerous chemicals were secretly stored, if the insured was equally ignorant. Nor could it be material that discoveries of science subsequent to the permission proved that gasoline was a more dangerous substance than had been supposed. On the other hand, even courts which hold that such conduct as asking for amended proofs of loss or stating the wrong ground of defence as a reason for non-payment, after the insured has acted thereon, estops an insurer from setting up a breach of condition which has already occurred, would not so hold unless the insurer knew or should have known the essential facts at the time he asked for proofs or misstated his ground of defence. It will be observed that in these latter cases the breach of condition or duty had already occurred. In the former case it had not occurred, and was induced by the permission of the insurer. Probably it may safely be said, 15 See supra, § 139. then, that where a breach of condition has already occurred, or a defence already arisen, a promissory estoppel will not preclude the promisor from taking advantage thereof unless he was aware, or should have been aware, of the facts showing the breach of condition or the defence. Knowledge of collateral facts even though of material importance seems, however, unessential. 16 § 693. Agreement to be liable in spite of a defence already accrued. In most of the cases supposed in the preceding sections, the waiver of excuse or of liability is made before the time for the performance of the condition or the happening of other excuse, or before the liability has arisen; and in reliance on the waiver, the party afterwards seeking to take advantage of it has changed his position. The case now to be considered is where the promisee has failed without excuse to perform a condition, or has allowed a defence to arise and subsequently the promisor undertakes expressly or impliedly not to take advantage of the breach of condition or other excuse. As the promisor, ex hypothesi, is already freed from liability, his agreement is, on exact analysis, a new undertaking. Whether such an undertaking can ever be enforced without the same consideration that is necessary to support promises generally is properly dealt with under the heading of Consideration.17 It is confusing the issue to speak of waiver here, without some defini 16 In some decisions it is true that it is broadly stated that the party surrendering a right must have full knowledge of all the essential or material facts. See Bucklin v. Johnson, 19 Ind. App. 406, 49 N. E. 612; Norton v. Catholic Order of Foresters, 138 Ia. 464, 469, 114 N. W. 893; Knights of Pythias Supreme Lodge v. Quinn, 78 Miss. 525, 20 So. 826. The principle was more narrowly expressed in St. Louis Electric L. & P. Co. v. Edison General Electric Co., 64 Fed. 997, 1001, where the court said there must be "full knowledge of all the essential or material facts of the acts and conduct of the other party," which goes no further substantially than saying there must be knowledge of a breach, if one has taken place. To this effect is Patterson v. Equitable Life Assur. Soc., 112 Ark. 171, 165 S. W. 454; Benanti v. Delaware Ins. Co., 86 Conn. 15, 84 Atl. 109; Callies v. Modern Woodmen of America, 98 Mo. App. 521, 72 S. W. 713; Dodge v. Minnesota, etc., Roofing Co., 14 Minn. 49; Schmidt v. Williamsburgh City Fire Ins. Co., 95 Neb. 43, 144 N. W. 1044, 51 L. R. A. (N. S.) 261; Johnson v. Schar, 9 S. Dak. 536, 70 N. W. 838. 17 See supra, §§ 139, 151 et seq. tion of the boundaries of the doctrine, as if some special principle permitted defences to be so surrendered. 18 It may be argued that there is a distinct principle of waiver wide enough to cover any such situation; and authorities may be cited to support the argument that there is a general rule to the effect that even after a perfect defence has arisen to a promise, either because of the breach of condition, or because of some rule of law, an agreement to surrender the excuse is binding without more. And if the generality of this statement be thought too great, it may be argued that at least if the excuse of the promisor is of a narrow or technical character, the principle is applicable. As to the first suggestion it may be replied that presumably no court would hold an insurer bound if he made a promise to pay a policy of insurance against fire, in spite of the fact that the house had not burned down within the term of the policy. The condition of burning would not be so easily "waived.” Similarly a promise made after the destruction of the building to pay insurance though the premium had never been paid and a condition of the policy required that it should be would probably not be enforced.19 19 Lord Eldon said in Stackhouse v. Barnston, 10 Ves. Jr. 453, 466: “As to a waiver, it is difficult to say precisely, what is meant by that term, with reference to the legal effect. A waiver is nothing, unless it amounts to a release. It is by a release, or something equivalent, only, that an equitable demand can be given away. A mere waiver signifies nothing more than an expression of intention not to insist upon the right; which in equity will not without consideration bar the right any more than at law accord without satisfaction would be a plea." "In Wheeler v. United States Casualty Co., 71 N. J. L. 396, 59 Atl. 347, the court said: "The fact that the defendant knew the assured to be 64 years of age when the policy was issued cannot change the construction heretofore adopted by this court, that the policy requires that the accident shall have happened while the person in jured was over 16 and under 65 years of age. The averment of waiver does not make the count good. It is not a waiver of performance of conditions precedent by the assured, such as furnishing proof of loss. Hibernia Mutual Fire Ins. Co. v. Meyer, 39 N. J. L. 482; Carson v. Jersey City Insurance Co., 43 N. J. L. 300, 39 Am. Rep. 584; Merchants' Ins. Co. v. Gibbs, 56 N. J. L. 679, 29 Atl. 485, 44 Am. St. Rep. 413; Snyder v. Dwelling-House Ins. Co., 59 N. J. L. 544, 37 Atl. 1022, 59 Am. St. Rep. 625. Nor can the waiver be held good as an estoppel, for the declaration shows that the plaintiff could not have been led to any act or encouraged in any omission to her prejudice by the act relied on as a waiver, as in Fire Ins. Co. v. Building Assoc., 43 N. J. L. 652, where a condition as to alienation was held to be waived: Martin v. Jersey City Ins. Co., 44 N. J. L. 274, where a 23 A promise by a guarantor to be absolutely liable though there was for some reason no debt due from the intended principal debtor, would doubtless be similarly unenforceable. But, as has been seen, promises to pay debts voidable for incapacity, 20 or barred by the Statute of Limitations,21 or by discharge in bankruptcy, 22 or by a failure to charge a party secondarily liable on negotiable paper, or released by one of the technical defenses allowed a surety, 24 have all been enforced; and it may be argued that these cases are merely illustrations of a more far reaching general principle applicable to technical defences. Such a proposition of law is not without much in its favor. Undoubtedly the enforcement of harsh conditions or technical defences frequently works hardship, and if certainty could be obtained both in regard to the requirements of the law in the way of subsequent promise or recognition by the obligor, and in regard to proof of whether such requirements in a particular case have been satisfied, a less drastic rule than that previously supported 25 would have much to commend it. If, however, any subsequent oral promise or recognition of liability is held sufficient to do away with any defence, or even any technical defence, it will be easy to manufacture testimony of the necessary facts. It has generally been thought necessary to require promises to pay debts barred by the Statute of Limitations to be put in writing in order to make them binding; and reasons have been given previously, 27 for regarding the doctrine of waiver of a defence as inadequate to explain the decisions on that subject. Moreover, there is great difficulty in determining when a particular defence or excuse is technical. This objection is not perhaps insuperable; but certainty of application is a positive merit in a rule of law, and lack of such certainty though necessarily existing in the application of forfeiture due to increase of hazard was waived; Redstrake v. Cumberland Insurance Co., 44 N. J. L. 294, where a provision avoiding the policy in case of effecting other insurance was waived, and the present chancellor called attention to the distinction between cases of waiver and cases of estoppel; Martin v. State Ins. Co., 44 N. J. L. 485, 43 Am. Rep. 397, where delay in bringing 26 suit was induced by the conduct of the defendant company." 20 See supra, § 151. 23 See supra, §§ 157, 1186. |