Cravens v. Gillilan

73 Mo. 524 | Mo. | 1881

Sherwood, C. J.

This case has been here before, and is reported in 63 Mo. 28, and we then discussed the principles we thought applicable to this case. In consequence,, however, of a retrial, the discussion of other points becomes necessary.

I.

The attention of the court not having been called, either in the motion for new trial or that in arrest, to the alleged error of refusing to strike out the amended replication of plaintiff, it would seem such error, if any, has been thereby cured.

II.

But granting it has not, the error at worst, is but a harmless one. Eor the replication, though informally drawn, because it does not in terms confess the non-execution of the note and then plead defendant’s ratification, certainly admits inferentially that defendant did not execute the note and then tenders the issue of his ratification. The instructions on this point, both for plaintiff and defendant, were most unexceptionable, so that it cannot be maintained that any injury has resulted from the informal replication.

III.

Nor was the replication a departure from the allegations of the petition. That offense is said to occur “when, in any pleading, the party deserts the ground he took in his last antecedent pleading, and resorts to another.” Steph. Plead., 410. The plaintiff did not abandon his original ground when pleading ratification, since ratification is only another method of execution, giving to a prior unauthorized act life and validity where it possessed none before: “ Matter which maintains, explains and fortifies the declaration or plea, is not a departure.” 1 Chitty Plead., 677. The plaintiff was not bound to anticipate the defense his adversary might make ; it would have been bad pleading if he had. And it was as competent and proper for him to meet the plea of non-execution, by replying ratification as it would have been in an action of assumpsit where infancy was pleaded, to have replied a promise made by the infant after attaining majority. Eor these reasons we regard evidence of ratification as admissible under the pleadings. As to that evidence, it was certainly sufficient to support the verdict.

We shall decline to discuss whether a foi’gery may be ratified, because there was no evidence, except the outside statement of the defendant, that any forgery had occurred, and because, more especially, no instruction was asked on this point. Discovering no substantial error in the record, we affirm the judgment.

All concur.