First-Citizens Bank & Trust Co. v. New Amsterdam Casualty Co. , 237 N.C. 591 ( 1953 )

Eevin, J.

The bond described in paragraph 4 of the statement of facts is apparently the identical bond which was in suit in Builders Corp. v. Casualty Co., 236 N.C. 513, 73 S.E. 2d 155.

This case is simplified if due heed is paid to the significant fact that Benfield had two separate contracts, one with the plaintiff and the other with Harris. The .defendant was not a party to either contract. The only obligation of a contractual nature assumed by the defendant was that involved in the contract of suretyship incorporated in the bond. The defendant undertook by his contract of suretyship to perform Benfield’s contractual obligation to Harris in the event Benfield failed to perform it. Casualty Co. v. Waller, 233 N.C. 536, 64 S.E. 2d 826.

The plaintiff has no right to sue the defendant upon the contract of suretyship embodied in the bond for the very simple reason that the plaintiff was not a party to such contract.

This brings us to the question whether the complaint makes out a case for the plaintiff under the doctrine of estoppel in pais. Long v. Trantham, 226 N.C. 510, 39 S.E. 2d 384; Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E. 2d 889; Scott v. Bryan, 210 N.C. 478, 187 S.E. 756; Upton v. Ferebee, 178 N.C. 194, 100 S.E. 310.

We are constrained to hold that this question must be answered adversely to plaintiff even if we accept as valid the somewhat dubious theory that the conduct of the defendant as set out in the complaint was tantamount to a representation by the defendant that the bond obligated the defendant to perform Benfield’s construction agreement with the plaintiff in the event Benfield failed to perform it.

The complaint discloses that the bond was presented to the plaintiff before the loan was made; that in consequence the plaintiff had a full opportunity to read the bond, and ascertain its terms before the loan was made; and that the plaintiff nevertheless accepted and retained the bond and made tbe loan without reading tbe bond. Tbis brings tbe case witbin tbe rule tbat one cannot claim tbe benefit of tbe doctrine of estoppel in pais if bis own failure to avail bimself of information witbin bis reach brings about tbe situation of which be complains. Ricks v. McPherson, 178 N.C. 154, 100 S.E. 330; Hull v. Commissioner of Internal Revenue, 87 F. 2d 260; Haselden v. Schein, 167 S.C. 534, 166 S.E. 634; 31 C.J.S., Estoppel, section 71. It is to be noted, moreover, tbat tbe plaintiff bad actual knowledge of tbe exact terms of the bond before it employed tbe five persons mentioned in paragraph 9 of tbe statement of facts to complete tbe bouses. “Tbe truth respecting tbe representations must be unknown to tbe party claiming tbe benefit of tbe estoppel, not only at tbe time they were made but at the time they were acted on by him.” Self Help Corp. v. Brinkley, supra.

Tbe allegations of tbe complaint tbat tbe plaintiff paid tbe five persons sums aggregating $34,425.76 “for labor and material furnished in tbe completion of tbe bouses, . . . and obtained from each an assignment of bis claim” do not reveal any right on tbe part of tbe plaintiff to recover any part of such sums from tbe defendant by way of either conventional or legal subrogation.

These obligations were not incurred by tbe defendant or any person acting under tbe bond. Tbe plaintiff engaged these five persons to complete tbe bouses for its own benefit after the' defendant bad disclaimed any obligation to plaintiff to perform such work, and after tbe plaintiff bad learned’ tbe exact terms of tbe bond. Tbe plaintiff could not obtain a right of subrogation against tbe defendant by paying debts for which tbe defendant was not liable at all. Publishing Co. v. Barber, 165 N.C. 478, 81 S.E. 694; 60 C.J., Subrogation, section 25.

Tbe judgment sustaining tbe demurrer is

Affirmed.