Feinberg

Defendant has appealed from the judgment rendered against it in this action which was brought on the theory that defendant, acting as an escrow agent for one Patricia Kennedy, had cooperated with her in fraudulently representing to the plaintiff that he would receive over $4,000 out of the escrow. The trial court did not find the allegations of fraud to be true, but based its judgment on the closely analogous theory of estoppel and also on the theory that there was a breach of an obligation founded upon an instrument in writing. We have concluded that while the evidence fails to support the last theory it does support the judgment based upon estoppel.

Viewed most favorably to the prevailing party, the evidence showed that in June of 1956 one Patricia Kennedy owed plaintiff $2,800. Mrs. Kennedy owned a piece of property upon which she wished to borrow some money and opened an escrow with defendant to accomplish her purpose. Becoming aware, in some way, that plaintiff purposed to bring an action against her and attach her property, she and defendant came to an understanding with him. Plaintiff agreed to refrain from levying an attachment on the property against which Mrs. Kennedy…