Barber v. Loveland

• Decision Date: 20 March 1933
• Docket Number: 30521
• Citation: 146 So. 854,166 Miss. 625
• Court: Mississippi Supreme Court
• Parties: BARBER v. LOVELAND et al

146 So. 854

166 Miss. 625

BARBER v. LOVELAND et al

No. 30521

Supreme Court of Mississippi

March 20, 1933

Division A

1. APPEAL AND ERROR.

Statutory provision for summons and severance when all parties to decree do not join in appeal held inapplicable to appeals from county to circuit courts (Code 1930, section 22).

2. APPEAL AND ERROR.

Objection that all parties to decree were not joined in appeal from county to circuit court could not be raised for first time in Supreme Court (Code 1930, section 22).

3 CONTRACTS.

Fact that oral representations of agent were previously relied on as basis for rescission held not to estop same party to subsequently rely upon fraud different from oral representations.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Suit by Theodore Loveland and others against T. S. Barber and others. From a decree of the circuit court affirming a decree of the county court in favor of the complainants, the defendant named appeals. Reversed, and cause remanded for further proceedings in accordance with opinion.

Reversed and remanded.

J. Thomas Dunn, of Meridian, for appellant.

The court has no proper jurisdiction of the facts and issues other than as presented to the court by the pleadings, and an assumption to act beyond the scope thereof, although there be proof of such extraneous facts, is unauthorized, and is either void or erroneous according to the extent that the action overruns the issues made in the records of the pleadings.

Griffith's Chancery Practice, sec. 30, page 34; Griffith's Chancery Practice, page 621.

The pleadings in this cause will speak for themselves on the question as to whether any element of estoppel has been presented to the court or whether there is anything in the pleadings relying upon an estoppel in pais. They do not even mention the word estoppel.

Estoppel is an affirmative defense.

Under our system of pleading now every defense not merely consisting of a denial must be specially pleaded or notice given under the general issue.

Griffith's Chancery Practice, page 364, section 360; Bessler & Co. v. Bank & Co., 106 So. 445.

The defenses of limitation and estoppel, being affirmative, must be set up by plea or answer.

Belt v. Adams, 125 Miss. 387; Campbell v. Farmer's Bank, 127 Miss. 673.

The appellees had every opportunity to raise the question by their pleadings; since they did not do so they have waived it, they cannot raise it for the first time in their argument as was done in this case.

Bartholomew v. Candee (Mass.), 14 Pick. 167; Tibbett v. Shapleight, 60 N.H. 487; Stephenson v. Miller (Ky.), 13 A. D. 271.

The appellees should not be heard nor allowed to set up any claim of an estoppel for the reason that their hands are tainted with fraud in the transaction. It has never been held that estoppel could be invoked to perpetrate a fraud.

16 Cyc. 747; In re Dreiul, 205 F. 573.

J. O. Sams and W. C. Sams, both of Meridian, for appellees.

Where all of the elements of estoppel have been clearly proven and there was no objection whatsoever from the adverse party, the court has before it an estoppel and the same appears clearly from, the record.

Belt v. Adams, 125 Miss. 387.

In the case at bar, the defendant having full knowledge of all of the facts, attempts to rescind his contract and gives a full and complete statement of all matters touching the transaction as the reason for his attempted rescission of his contract, and then after litigation had begun he comes in and denies all his former statements, saying that they are not true, and takes a new and entirely different ground for defense. If such contention can be allowed to stand, and if such contention is good in law, then no such thing as an estoppel can exist in Mississippi.

The estoppel here did not result in fraud. The fraud, if any, has been already committed, and the estoppel here raised is here raised to prevent injustice. It would be grossly unjust to allow the appellant, who by his negligence has caused the appellees to go to a great expense, to now come in and set up a different state of facts from those before alleged, and make the appellees innocent third parties suffer because of his negligence.

At common law an estoppel in pais need not be pleaded, but under the statutes of the various jurisdictions it is now almost universally necessary that it should be. If, however, the state of the case is such that the estoppel cannot be pleaded, it may be given in evidence, and in such case it will be equally conclusive as if it had been pleaded.

16 Cyc., page 806; Babylon v. Dultera, 89 Md. 444, 43 A. 938; Brook v. Gregg, 89 Md. 234, 43 A. 38; Higgins v. Carlton, 28 Md. 115, 92 Am. Dec. 666; Yingling v. Hoppe (Md.), 9 Gill 310; Alexander v. Walter (Md.), 8 Gill 239, 50 Am. Dec. 688; Coleman v. Pearce, 26 Minn. 123, 1 N.W. 846; Caldwell v. Anger, 4 Minn. 217, 77 Am. Dec. 515; Castalia Trout Club Co. v. Castalia Sporting Club, 8 Ohio Cir. Ct. 194, 8 Ohio Cir. Dec. 693; Mack v. Fries, 5 Ohio Dec. (reprint) 174, 3 Am. L. Rec. 385, (reversed in 33 Ohio St. 52); Freeman v. Cooke, 6 D. & L. 187, 2 Exch. 654, 12 Jur. 777, 18 L. J. Exch. 114; Tyon v. Reed, 8 Jur. 762, 13 L. J. Exch. 377, 13 M. & W. 285; Sanderson v. Coleman, 11 L. J. C. P. 270, 4 M. & G. 209, 4 Scott N. R. 638, 43 E. C. L. 115; Turnipseed v. Hudson, 50 Miss. 429.

Exceptions to the general rule that an estoppel in pais should be pleaded are the following; where a replication or reply is not permitted; and where the estoppel is shown by evidence admissible to rebut evidence introduced by the opposite party; and where the failure to plead, the estoppel is waived by the opposing parties proceeding with the trial of the case without objection after knowing of the estoppel.

21 Corpus Juris 1244; 16 Cyc. 808 and 809; 16 Cyc. 811, note 55.

The failure to object when a record is offered in evidence as an estoppel is a waiver of an objection that the estoppel was not specially pleaded.

Flandreau v. Downey, 23 Cal. 354; Bessler & Co. v. Bank & Co., 106 So. 445; Ohio & Mississippi Valley Railroad Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693; Luchenbach v. Grave (C. C. A.), 267 F. 676; Board of Trustees v. Spitzer (D. C.), 255 F. 136; Godchaux Sugars v. Meridian Wholesale Co., 289 F. 35, Vol. 24 3rd Dec. M. Digest 50.

The court should dismiss the above cause pursuant to section 22 of the Mississippi Code of 1930, because:

1. A judgment was recovered against Tom Barber, Liebel Jewelry Co., and J. Thomas Dunn, H. R. Stone, Jr., and Moore, Trustees in the above cause in the county court of Lauderdale county, Mississippi, and

2. Only one defendant, Tom Barber, appealed to the circuit court and only the said Tom Barber appealed to this court, and

3. The decree of the county court against all of the defendants was affirmed in its entirety by the circuit court, and

4. None of the other defendants, who have not joined in this appeal, have been summoned to appear before this court and join in this appeal.

Argued orally by J. T. Dunn, for appellant, and by J. O. Sams, for appellee.

OPINION

Cook, J.

Under ...