# Stewart v. Todd

> Supreme Court of Iowa · July 10, 1919 · 190 Iowa 283

URL: https://www.frixlaw.com/law-library/cases/7119034

## Case

- **Full name:** Samuel M. Stewart v. Samuel W. Todd
- **Court:** Supreme Court of Iowa
- **Decided:** July 10, 1919
- **Citations:** 190 Iowa 283
- **Precedential status:** Published
- **Opinion:** Dissent by Salinger
- **Judges:** Evans, Gaynor, Ladd, Preston, Salinger, Stevens, Weaver
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7119034

## Opinion text

Salinger, J.
(dissenting from the supplemental opinion). While I am with the result, I am of opinion the steps that lead to that result demand more than is now given. My reasons for that position are fully stated in the dissent I have heretofore filed. I call special attention to that part of the dissent which points out that Mr. Walker never claimed to remember the con *328 tents of the alleged lost contract, and that he discloses a memory which would make it impossible for him to remember it. Also call attention to the conduct utterly inconsistent with the claim now being advanced and sustained; to the fact that Mr. Walker advised the contract would be binding if wills were made, while, if the contract is as plaintiff claims, it was valid and binding without the making of wills. I call attention to the last-quoted paragraph in the left-hand column of page 628, 173 N. W.; to the last paragraph on the left-hand side of page 629, and the remainder of that page to the first paragraph on page 630, and the remainder of that column to Paragraph a in the right-hand column of page 630, and the first paragraph on page 631. I insist once more that the present holding destroys the rule that claims such as this must be established by evidence that is conclusive and overwhelming. I wish to specially emphasize my opposition to the pronouncement:
“There is no estoppel shown in this ease. No prejudice resulted to any of the contesting parties as a consequence of the silence or even active participation of the plaintiff in the probate of this will.”
In my judgment, this overrules an unbroken line of cases to the effect that, as to inconsistent conduct in court, the rules governing an estoppel in pais do not obtain, and that such inconsistencies cannot be permitted, even though no prejudice has resulted, and though no one has changed his position. The cases so holding are set out on page 633. I wish to emphasize further that here was, at best, nothing but a partnership contract, dealing with the fruits of the partnership; that, ’therefore, the surviving partner has no interest in anything but partnership property existing when the partnership was dissolved; that this partnership was dissolved in the lifetime of Mrs. Stewart; and therefore, her partner has no interest in the property of which Mrs. Stewart thereafter died seized. (See page 634.)
I would reverse.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7119034. Public record. Not legal advice.