263 Mo. 128 | Mo. | 1914
This is a suit in equity which comes to us upon cross-appeals. Since a decision of one appeal will necessarily' dispose fully of the other, the cases, by consent of counsel, have been consolidated. Both cases, and all points involved therein, will be disposed of in one opinion.
This is likewise the second cross-appeal in this case. All of the facts of the case and' all of the points involved, except the one issue hereafter to be adverted to, are set forth and disposed of upon the former cross-appeals, our rulings upon which will be found in the case styled McLure v. Bank of Commerce, 252 Mo. 510. Reference for the facts and the matters held in judgment upon the former appeals, is hereby made to the former opinion, should the curious desire more light or should such light become necessary to an understanding of the points in the below opinion.
When the case was here before our learned Brother Graves, who wrote the opinion of the court, took the view that the case ought to be reversed and remanded with directions to the court nisi to enter up judgment in accordance to the views expressed in the opinion. Our- Brother Graves upon the very important point as to the value of the land in dispute, held under the evidence in that record, that this land was
When the case went back to be retried below plaintiff amended his petition by interlineation in such wise as to raise with sufficient clearness the issue as to the , value of the land in dispute on the date in 1909 when this land was wrongfully, as our former opinion held, sold by defendant. The defendant thereupon asked leave to so amend its answer as to raise for the first time in the case the issue as to whether plaintiff by statements made by him, and his agent, one Mellor, to defendant in 1908, had not led defendant to believe that' the land in question was worth only the sum of $40,000, thus, by the proposed amended answer, raising the issue of estoppel. Likewise the proposed amended answer raised the issue that plaintiff had ratified and approved the sale by defendant of the land at the sum and price of $38,000. Defendant’s theory of ratifica
The learned trial court, upon the conclusion of all evidence upon the issue of the value of the land, found that the same was worth the sum of $52,500 as of the date this land was sold by defendant, and made an accounting between the parties and rendered a decree upon the basis of this value. Prom the finding of the court plaintiff appealed upon the ground that the value placed on the land by the court was smaller than was justified by the evidence offered. Defendant has appealed because such value was too large, and upon the further ground that it was error for the court to refuse to defendant permission to file the amended answer containing the said allegations of es
Since we may logically deal with the respective contentions of the parties touching the finding as to the value of the land under one and the same head, we will first examine the contention of alleged error based upon the refusal of the court to permit an amendment of defendant’s answer.
When this case was here before it had been tried below upon a mere general denial. No estoppel of whatever sort was pleaded by defendant. It contented itself by saying for defense, this only: “Defendants in the above-entitled cause, answering the petition of the plaintiff, say they deny each and every allegation therein contained.”
This court on the former appeal approved all that was done by the trial court, except that, upon the insistence of defendant that it had been so misled by the attitude of plaintiff and by the ruling of the trial court that it had failed to offer much obtainable testimony as to the value of the land in dispute, we held, as we say in the statement, that in the interest of fairness we ought to send this case back and allow defendant to offer any additional evidence it might have upon this question. So, while agreeing to all that was said upon the merits, a majority of us disagreed with the opinion only as to the finality of the amount found as the value of the land. On this question we made in
“A majority of the court, however, are of the opinion that the cause should-be remanded to the end that the issue of the value of the land may be more thoroughly tried, and the whole court is of the further opinion that the new trial should be confined to that single issue, all other issues having been properly tried and determined before. Either party may so amend the pleadings, if such is desired, so as to clearly draw the issue upon this question.
“The judgment is therefore reversed and the cause remanded to the circuit court with directions to hear testimony upon the value of the land in dispute at the date of the sale, and to confine such new trial to that issue alone, and after having determined such value to then enter up judgment in accordance with the facts heretofore found and then found upon this issue. ’ ’
Estoppel must be pleaded (Loving Co. v. Cattle Co., 176 Mo. 330; Cape Girardeau, etc., Ry. Co. v. St. Louis & Gulf Ry. Co., 222 Mo. 461), unless it arises in such wise as to afford no opportunity to plead it (Long v. Lackawanna Coal & Iron Co., 233 Mo. 713); or be shown by plaintiff’s proof (Brown Construction Co. v. MacArthur Bros. Co., 236 Mo. 41). The general denial set out above shows that estoppel was not pleaded upon the former trial. The former opinion does not refer to such a defense. [McLure v. Bank, 252 Mo. 510.] The case does not fall within either of the exceptions, and even if it could be said to fall upon the facts within the exception secondly above noted and to have been shown by the cross-examination of Mellor, who was one of plaintiff’s witnesses, yet it was not either tried below on the former trial, or ruled here upon any such theory. For, since estoppel was not pleaded in the former trial, it follows that such issue was not raised. If a-case could be tried piece
. We do not think there can be two views as to what the former judgment reversing this case directed the trial court to do. The only tenable view would seem to be settled from this compelling language found in our per curiam opinion, viz: “The whole court is of the further opinion that the new trial should be confined to that single issue, all other issues having been properly tried and determined before. . . . The judgment is therefore reversed and the cause remanded to the circuit court with directions to hear testimony upon the value of the land in dispute at the date of the sale, and to confine such new trial to that issue alone.”
The law as to the effect of our holding upon a former appeal is fairly well settled, and from the case of Chouteau v. Allen, 74 Mo. 56, to the late case of Keaton v. Jorndt, 259 Mo. 179, there has been in our holdings neither change nor shadow of turning. In fact, we do not understand learned counsel for defendant to challenge the rule of law which, as the ChouteauAlien case, supra, expresses it, makes the mandate of this court “in the nature of a special power of attorney” to the court nisi in the new trial. The difficulty lies in the fact that learned counsel take the view that the defense of estoppel operating to limit the value of the land to $40,000, was within the contemplation of our mandate. We do not agree with them in this contention. Granting for argument’s sake that under our mandate defendant could by estoppel limit the finding of value to $40,000, being the price at which plaintiff in the summer and fall of 1908 was willing to
In passing we pause to say that no absolute ratification as is urged upon us by defendant can fairly be based upon the letter of plaintiff of January, 1910. The latter for the sake of peace and to procure the release to him of his dividend-bearing collateral, might have been willing to accept the surplus of $20,000 then, without a lawsuit, acquiescing thus and ratifying the sale to Mrs. Koehlor. But when defendant bank utterly refused to concede any interest in this surplus to plaintiff and profanely informed him that “not one cent of credit” was to be given plaintiff on account of this land, does not a doctrine which is concededly not estoppel but which in common sense is very analogous to it, arise logically in favor of plaintiff? In the form
Defendant had the full benefit of all of the evidence which it now urges upon us as proof of estoppel, so far as this evidence operated to prove the view held by plaintiff in the fall of 1908 as to the value of this land. This is in our opinion all it was entitled to under the facts and the law of this case. Therefore the trial court did not err in refusing to allow the filing of the proposed amended petition, and we are constrained to disallow this assignment of error.
The plaintiff fixed the value of the land at $75,000, which included the permanent improvements. He testified that for the purchase of the land and for improvements of whatever kind, both permanent and perishable, he had expended some $100,000, but that of this amount the sum of $25,000 was for shrubbery,
In addition to plaintiff and to said Bryce and Ryan, the two latter of whom fixed the value at $65,-430 exclusive of improvements, and $64,000 apparently including improvements, respectively, but whose testimony is of doubtful weight, the witnesses for plaintiff fixed the following values to this land: McDermott, $1,000 per acre, or $65,430; Darst, $850 per acre or $56,615; Grivans, $900 per acre or $58,887; Surkamp, $900 per acre, or $58,887; Sidebotham, $1,000 per acre, or $65,430; Dowler, $950 per acre,.or $62,300; Zeibig, $800 per acre, or $52,344; Dittmeier, $900 per acre, or $58,887; and Henderson fixed the worth of twenty-five acres of the land only, with the improvements thereon, at $62,500. All of these witnesses, except Henderson, Ryan and the plaintiff, based their figures on the value of the bare ground, exclusive of the improvements.
Defendant called six witnesses, viz: Messrs. Hufft, Kaufman and Gibson, who each fixed the value at $600
The learned trial judge took the lowest value placed on this land by any of the witnesses for plaintiff, that is to say, that of Mr. Zeibig, who fixed the value, exclusive of improvements, at $52,500. The court below took no account of the value of the improvements. In this, in the light of the great weight of the testimony, we think he fell into error. In the condition of this record, and in view of the opinion held by ns before, on a showing (we stray from the record to say) weaker, comparatively, than that now before us, we do not feel inclined to fix a value less than that found before by us. So, exercising the right given us in an equity case to try the issues de novo, we find the value of this land at the date of the sale thereof by defendant to Mrs. Koehlor in 1909, to have been $58,887.
A recasting of the accounts between plaintiff and defendant had pursuant to the decree of the court below, will, we are advised by counsel and assume from the record, leave in the hands of defendant certain
It follows that this case should be reversed and remanded with directions to find the value of the land in dispute at the sum of $58.,887, and to recast the account between plaintiff and defendant upon the basis of such value; decree in all other respects to be as entered by the trial court; saving, however, the said matter of accrued dividends and profits, if any, to be hereafter adjusted between the parties. It is so ordered.