802; City of Unionville v. Martin, 95 Mo. App. 28, 68 S. W. 605; La France Fire Engine Co. v. City of Syracuse, 33 Misc. Rep. 516, 68 N. Y. Supp. 894; McAleer v. Angell, 19 R. I. 688, 36 Atl. 588. Nor will the expenditure of money on the faith of such contract or the fact of the corporation receiving the benefit of the contract strengthen the position against the municipal corporation: Hope v. City of Alton, 214 Ill. 102, 73 N. E. 406; Mealey v. City of Hagerstown, 92 Md. 741, 48 Atl. 746; Paul v. City of Seattle, 40 Wash. 294, 82 Pac. 601; nor the fact that as the result of a compromise between certain municipal and railway officials, a bridge had been built and kept in repair for years at their joint expense: State v. Minnesota Transfer Ry. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656. In Shaw v. City and County of San Francisco (Cal.), 110 Pac. 149, the employés in a department were appointed in violation of the civil service provision of the charter of the municipality. The court held that to permit a liability to be imposed upon the municipality for services admittedly rendered under appointments void under the law would be to fritter away the entire civil service scheme; and that though the services were rendered, the city was not estopped from repudiating liability. The court, too, took occasion to point out that Contra Costa Water Co. v. Breed, 139 Cal. 432, 73 Paa. 189, cannot be said to overrule Zottman v. San Francisco, 20 Cal. 97, 81 Am. Dec. 96.

n. Erroneous Construction of the Law. The incorrect construction of the law by city authorities, and the consequent forbearance by them of certain acts within their powers, do not estop them from asserting their rights on proper occasion. In 1890 the plaintiffs paid their legal portion of the cost of paving one of the streets in the city, adjacent to their property, and the city misconstrued the laws of 1885 as not empowering it to charge an abutting owner with the cost of a subsequent pavement. When the city awoke to its rights, the plaintiffs claimed they were forever immune from any special charge against their properties on account of such street paving. The argument was plausible to the ear, but not convincing to the judgment of the court, which held the city was not thereafter estopped from making a special assessment to defray the expense of a new pavement: Carstens v. City of Fond du Lac, 137 Wis. 465, 119 N. W. 117.

Instances and illustrations might be given in much greater number than our limited space will allow, but those given will be found ample for comparison. When some casus omissus occurs, the student should, by the light of the accepted principles of the application of the doctrine, which we have collected and classified, be enabled to judge for himself whether the state of facts surrounding the new case is such as to raise the right to an equitable estoppel. Keeping before him the nature of the corporation, the compass of the authority of the officer, the acts performed with regard to their absolute prohibition or qualified permission, the resulting benefits, the knowledge or ignorance of illegality, and, above all, guiding himself by the light of the common sense which should regulate business matters, and of the fair play which the courts seek through the intricate mesh of complicated circumstances and only too often prolix technicalities, he will have little difficulty in deciding whether his case is one which he, of good conscience, can present to a court of equity for relief.

LEVI v. LOEVENHART & COMPANY.

[138 Ky. 133, 127 S. W. 748.]

BANKRUPTCY-Discharge of Debt.-Where Employers accept an order from an employé directing them to pay to his creditor a stated amount each week from his wages until the debt is settled, but subsequently the debt is satisfied by the discharge of the employé in bankruptcy, the employers are thereby relieved from liability on account of accepting the order. (p. 379.)

Samuel A. Ledeman and Kohn, Baird, Sloss & Kohn, for the appellant.

Nathan Kahn, for the appellees.

133 LASSING, J. On October 1, 1906, Albert G. Metzler, who was then in the employ of Loevenhart & Co., gave to Joseph Levi the following order: "Louisville, Kentucky, October 1, 1906: Messrs. Loevenhart & Co., Louisville, Ky.Gentlemen: Kindly pay to Mr. Jos. Levi $7.50/100, seven and 50/100 dollars each week, out of my salary as long as I am in your employ, or until my indebtedness of $500 to Mr. Jos. Levi is settled. [Signed] Albert G. Metzler"-directing 134 them to pay to said Levi out of his wages the sum of seven dollars and fifty cents per week until a debt due him, amounting at that date to $500, and evidenced by a promissory note, was satisfied. Loevenhart & Co. accepted this order, as appears from the following indorsement thereon: "Accepted. Loevenhart & Co. Oct. 1st, 1906." Thereafter, Metzler filed his petition in bankruptcy, and was in due time adjudged a bankrupt and discharged. After he became a bankrupt, Loevenhart & Co. discontinued the payment of the weekly stipend to Levi, and on March 10, 1908, he filed suit in the Jefferson circuit court to compel Loevenhart & Co. to comply with the terms of the order and to pay him a balance alleged to be due on his debt, amounting to $237.50. He pleaded, further, that Metzler was still in the employ of the defendants, and had been ever since they ceased paying him as per the order, and that, under the terms of the order, there was then in their hands, or should have been, more than enough money, if they had complied with their agreement, to satisfy the balance of his debt.

A special demurrer and certain motions to strike were disposed of, and the defendants answered, in five paragraphs. The first is a traverse. The second pleads payment by Metzler. The third pleads usury in the note to the amount of $265.50. The fourth pleads, substantially, that Levi had taken advantage of the embarrassed financial condition of Metzler, and had overreached him, and induced him to execute an unconscionable contract, the enforcement of which was

$222.85, the 135

against a sound public policy, and that, because of the advantage thus taken of him in procuring him to execute the contract for $500, when, as a matter of fact, he only received same should not be enforced. In the fifth paragraph he set up the discharge of Metzler by the bankruptcy court, and filed with his answer copies of the order of the federal court for the western district of Kentucky, showing his adjudication and discharge in bankruptcy, together with a schedule filed by him in said court, in which plaintiff is given as a creditor, and he sought to be relieved from the payment of plaintiff's claim along with others. This adjudication and discharge they pleaded in bar of plaintiff's right to recover.

Plaintiff replied, traversing the allegations of the first, second, third, and fourth paragraphs, and pleaded, in response to the fifth, that he had taken no part in the bankruptcy proceedings, had filed no claim, and, in short, had ignored the proceedings therein. A demurrer was sustained to the fourth and fifth paragraphs of his reply. He declined to plead further, and, over his objection, his petition was dismissed, with judgment for costs. He appeals.

There is really but one question involved on this appeal, and that is whether or not the discharge in bankruptcy satisfied plaintiff's debt and relieved him, and Loevenhart & Co. for him, of any further liability on account of the order and acceptance above set out. It is not seriously denied that the adjudication in bankruptcy discharged the $500 debt which plaintiff held against Metzler; but it is argued that, by this order, plaintiff acquired a property right in Metzler's wages, of which he could not be deprived by the discharge of the bankrupt, and on this theory rests his right to recover. This court has, in a number of cases, held that such an order, given by a debtor to his employer in favor of a creditor, operates as an equitable assignment of the wages designated 136 in the order, and that the title of the creditor to the wages covered by the order is superior to that of any attaching or execution creditor: Holt v. Thurman, 111 Ky. 84, 98 Am. St. Rep. 399, 23 Ky. Law Rep. 92, 63 S. W. 280; Manly v. Bitzer, 91 Ky. 596, 34 Am. St. Rep. 242, 13 Ky. Law Rep. 166, 16 S. W. 464; Boone v. Connelly, 12 Ky. Law Rep. 190. This is the extent to which these cases have held, and the question has arisen only as to the rights of creditors to subject wages that have been earned. The terms of the order were literally complied with by appellees at all times before Metzler's discharge, and it is only with the right of plaintiff to hold them liable for wages not then earned, but to be earned in the future, that we are now called to pass upon.

Undoubtedly the order in question secured to plaintiff an equity-suspended, as it were-which attached immediately

that the wages were earned, and secured to him a priority in the earned wages to the extent stipulated in the order superior to that of any other creditor; but such right did not attach until the wages were earned. The order was valid only so long as the indebtedness of plaintiff remained unsatisfied. It is of no higher or greater dignity than the debt. It is merely an agreement that there shall be appropriated out of the debtor's wages a stipulated sum, to be credited on his debt until it is satisfied; i. e., paid or discharged. By his discharge in bankruptcy Metzler settled every debt that he owed -was entirely, completely and finally relieved from any and all liability on account thereof; and as plaintiff's claim was set up and described in the proceeding in the bankruptcy court as a debt owing by Metzler, it was likewise canceled, satisfied and settled, and, being settled, the conditions of the order 137 were fully satisfied, and appellee relieved from all liability thereunder.

This being so, it becomes unnecessary to discuss the further questions of interest raised by counsel in their briefs.

Judgment of the lower court is affirmed.

A Discharge in Bankruptcy, according to Mallin v. Wenham, 209 Ill. 252, 101 Am. St. Rep. 233, does not release a prior assignment of wages to be earned in the future nor destroy the lien created by such assignment. This is perhaps the more persuasive view, because by the assignment a lien is created, and the operation of the statutes of bankruptcy is not to destroy liens, except to the extent that they so provide, but merely to prevent the maintenance of any personal action against the bankrupt; while on the other hand, the view as expressed in the principal case rests on a solid foundation of sound law.

MADISONVILLE, HARTFORD AND EASTERN RAILROAD COMPANY v. CATES.

[138 Ky. 257, 127 S. W. 988.]

SURFACE WATER-Right to Accelerate or Retard Flow.Where two estates, one lower than the other, join, the lower is subject to the easement or servitude of receiving the natural flow of surface water from the upper one. Therefore the owner has no right to create obstructions causing such water to back upon or overflow the upper ground. And the owner of the upper estate must not, by operations on his land, divert the water from its natural channel and thereby make a new channel on the lower ground, nor collect in one channel waters usually flowing off on his neighbor's land by several channels and thereby increase the flow upon the lower ground. (p. 383.)

SURFACE WATER-Right to Accelerate or Retard Flow.Where a railroad company negligently diverts surface water from

its natural channel, or obstructs its usual course, and causes it to overflow an adjoining estate in greater and unusual quantities than was its wont, to the injury of crops thereon, the company will not be heard to complain that the owner does not minimize his damages. He is under no duty to relieve the company from the consequences of its negligence. (p. 383.)

SURFACE WATER-Damages for Flooding Crops.-The measure of damages for injury to growing crops by causing surface water to overflow the land is the value while standing, of so much of them as are wholly destroyed, and the depreciation in the value of the remainder. (p. 385.)

TRIAL.-To Refuse an Instruction is not Error if those given contain the whole law of the case. (p. 385.)

C. J. Waddle, Benj. D. Warfield and Charles H. Moorman, for the appellant.

Gibson & Kincheloe, for the appellee.

258 SETTLE, J. Appellee recovered of appellant in the court below a verdict and judgment for $500 damages, resulting from the flooding of his land, and injury to certain crops produced and growing thereon, caused, 259 as alleged, by the wrongful acts of appellant's servants in negligently diverting the waters of a stream called "Greasy creek," and those of a tributary branch, from the natural beds or channels in which they were accustomed to stand and run, and causing them, in unusual volume and quantity, to overflow and stand upon appellee's land and crops. Appellant filed an answer of two paragraphs; the first containing a traverse and the second a plea of contributory negligence, based upon appellee's alleged failure to ditch his land and construct fills or levees on and along the banks of the creek. The plea of contributory negligence was controverted by reply. The several items of damage claimed in the petition amounted in the aggregate to $1,027.50, consisting, as alleged, of injuries from overflows to the following crops destroyed in whole or in part in the year 1907: Eleven acres of tobacco; four and one-half acres of millet; seven acres of stock peas; and twenty acres of growing grass, in the year 1908. The evidence did not sustain the entire claim of damages asserted by the appellee, but a number of witnesses testified that his damages amounted to as much as the jury awarded him; therefore no ground exists for appellant's contention that the verdict was unsupported by the evidence, or that it was excessive. Appellee's farm of eighty acres lies one mile west of Madisonville on the south side of appellant's line of railroad, which was constructed between the beginning of the year 1906 and the end of the year 1909. We make a part of this opinion the map used on the trial in the court below, which appears in the record: