70 Mo. App. 71 | Mo. Ct. App. | 1897
During the progress of the trial in the circuit court the defendant, as a defense to the action, offered evidence tending to establish an estoppel in pais, and to the introduction of which the plaintiff objected on the ground that there was no estoppel in pais pleaded and because, further, justices’ courts have no jurisdiction of such defense, it being an equitable one, etc. These objections were by the court overruled and to which ruling the plaintiff duly excepted. It is conceded by the defendant in the brief of his counsel that this action of the court was erroneous.
It further appears from the testimony of Phipps himself that just as soon as he got his hands on the note he, instead of delivering it to plaintiff, pledged it to his brother to secure the payment of his individual indebtedness. A more barefaced and glaring fraud than this it seems to us has rarely been confessed in a court of justice. The testimony of the witnesses Phipps, DeAtley, Mills, and Gillelan, who each as tenants cultivated separate parts of plaintiff’s farm, does not favorably impress us with either their truthfulness or integrity. It does not appear from the plaintiff’s testimony that she is a woman of more than the average intelligence. It may be well doubted that when she agreed to accept a note for the rent that she knew she had a lien on the crop of the subtenants, and that therefore it may be safely inferred that she never intended by the acceptance of the note to waive something she did not know she had. The facts and circumstances disclosed by the evidence do not in the least tend to show that it was plaintiff’s intention to waive her landlord’s lien.
It may be that but for the errors already noticed the finding of the trial judge would be conclusive on us, but however this may be, it is manifest from what