Quinlan v. Keiser
66 Mo. 603
Mo.
1877
Check Treatment
Sherwood, O.- J.

— The object, sought by this proceeding, was to have opened the settlement of an account on the ground of fraud, and to have a new account restated, &c. The referee found that defendants had been guilty of undue concealment in dealing with plaintiffs in regard to *605the whisky purchased on joint account, and that the relations of trust and confidence existing between the pai’ties, demanded the fullest disclosure ; but the referee also found that plaintiffs were apprised of the fact that defendants had acted towards them in a manner not consonant to equity and good conscience ; and this knowledge was acquired anterior to the settlement now sought to be opened. Upon this state of facts, his opinion was that plaintiffs had no standing in a court of equity. The circuit court adopted this view, and dismissed the petition. This judgment was affirmed at general term, but on appeal, the Court of Appeals, on the ground that the report of the referee could not be applied to the pleadings, reversed the judgment and remanded the cause. In other respects than the one just noted, the opinion of the Court of Appeals sustains the report of the referee. It seems to us that the view taken by the referee- is the correct one; that it is quite immaterial how inartistieally drawn is the answer of defendants, since it is apparent that let the answer be what it will, plaintiffs' cannot be successful. We have been cited by counsel for plaintiffs to the case of Pomeroy v. Benton, (57 Mo. 531,) but, whatever parallelism there may be between the two cases in other respects, it is certain that, in the particular referred to, there exists none whatever; for in that ease Pomeroy had no reason to suspect the fairness of the balance sheet presented; here on the plaintiffs’ own showing, they had every reason to believe that they had been wrongly treated, and yet made not the slightest objection to the settlement now asked to be opened. In instances such as these, courts of equity invariably apply the paaxim: “He who did not speak when he should have spoken; shall not be heard, now that he should be silent.” Holding then, that the inexcusable laches of plaintiffs has barred them of whatever right to equitable relief they may oncehave possessed, we reverse the judgment of the Court of Appeals, and affirm that of the circuit court.

*606All concur, except House and Henry, J., not sitting.

Reversed.