Grafeman Dairy Co. v. Northwestern Bank , 315 Mo. 849 ( 1926 )

ON MOTION FOR REHEARING In their motion for rehearing counsel for appellants say that "the holding of the court that it is necessary to plead the acts relied upon as constituting ratification is in conflict with a controlling decision of this court, to which the attention of the court was not called through inadvertence of counsel, viz: Fairgate Realty Co. v. Drozda, 181 S.W. 398." The decision cited deals only with matters of estoppel in pais arising out of the negligence of plaintiff's board of directors which appeared from the testimony of plaintiff's own witnesses. We held that in such case the defense of estoppel in pais was available, though not specially pleaded. We find no mention of ratification in the opinion, but even if, as appellants here seem to think, ratification was an element of the estoppel in that case, we have announced no strange or discordant doctrine in the foregoing opinion. On appellants' first appeal, Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. l.c. 333, we recognized the above doctrine, and carefully looked for matters of estoppel in plaintiff's own evidence then before us, but found none. On the present appeal we have done more, in that we have examined all the evidence in the light of certain matters or estoppel which we hold are pleaded, and we are still unable to find that plaintiff is estopped. We have ruled without exception in this State that the facts relied on to show equitable estoppel must be specifically pleaded and proved by defendant unless they appear from the case made by plaintiff.

Adverting to our opinion as it deals with ratification and acquiescence, we have not sought to go beyond the rule announced by WAGNER, J., in the early case of Northrup v. Mississippi Valley Ins. Co., 47 Mo. l.c. 444, that "whenever a defendant intends to rest his defense upon any fact which is not included in the allegations necessary to the support of the plaintiff's case, he must set it out according to the statute, in ordinary and concise language, else he will be precluded from giving evidence of it upon the trial." We have followed this rule in Kelerher v. Henderson, 203 Mo. l.c. 512, and in many other cases. But, appellants say that in their answer they denied generally plaintiff's allegations "that said purported notes and deed of trust were never authorized by the board of directors, nor by the stockholders of the plaintiff . . . and that if the said William Grafeman executed said purported notes and deed of trust, he did so on his own account and responsibility, and without the authority, knowledge or consent of plaintiff." Therefore, appellants say, they have raised the issue of ratification or acquiescence. As to the effect of a general denial, we said in Musser v. Adler, 86 Mo. l.c. 449, that it, "puts in issue the facts pleaded in the petition, not the liability. The facts from which the law draws the conclusion of non-liability, must be pleaded in the answer when they are not stated in the petition." See, also, Beheret v. Myers, 240 Mo. l.c. 83. As said in Bigelow on Estoppel, cited by appellants (6 Ed.) page 493, in speaking of acquiescence and ratification: "Neither the one nor the other, however, can be more than part of an estoppel, at best." Again, the same authority at page 757, speaking of ratification and estoppel, reads: "At most they are but facts which may serve to supply something otherwise wanting to an estoppel." The answer in this case does not stop with a general denial. It goes on and specially pleads facts by reason of which, it in terms alleges, plaintiff "is estopped" from questioning the validity of the deed of trust. Having thus pleaded a part of the facts relied on to show equitable estoppel we think all should have been specially pleaded in the answer, but even if under all the pleadings defendants were entitled to show the facts which they now say constitute acquiescence and ratification on the part of plaintiff without specially pleading them, yet upon the authority cited these facts could at most be nothing more than parts of the alleged estoppel, and they were fully considered in passing on the estoppel. In arriving at our decision we have not stood upon the ceremony of our view as to the sufficiency of the answer, but have considered all the facts in evidence, whether specially pleaded or not, and most of them are discussed at some length in the opinion. Appellant's briefs throughout clearly indicate their absolute reliance upon equitable estoppel, and after a careful consideration of the motion we discover no sufficient ground for a rehearing.

Appellant's motion for rehearing is overruled.