Exch. Bank of St. Louis v. Cooper

• Decision Date: 31 March 1867
• Citation: 40 Mo. 169
• Parties: THE EXCHANGE BANK OF ST. LOUIS, Defendant in Error, v. WILLIAM G. COOPER, Plaintiff in Error.
• Court: Missouri Supreme Court

40 Mo. 169

THE EXCHANGE BANK OF ST. LOUIS, Defendant in Error,

v.WILLIAM G. COOPER, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1867.

Error to St. Louis Circuit Court.

Russell & Goff, for plaintiff in error.

The refusal of defendant's instructions was error; for, to constitute defendant's declarations matter of estoppel in pais, it must have appeared--1. That they were inconsistent with the fact sought to be proved, viz., that he was a resident; 2. That they were made wilfully and with intent to induce plaintiff to believe he was a non-resident; 3. That they were sufficient to induce a reasonable man to believe it; 4. That plaintiff did believe it, and, relying on it, instituted suit; 5. That she would have been injured by allowing proof of plaintiff's evidence.--Pickard v. Sears, 6 Ad. & El. 469; Freeman v. Cook, 2 Exch. Rep. 654; Brown v. Wheeler, 17 Conn. 345; Parker v. Barker, 2 Metc. 423; Danforth v. Adams, 29 Conn. 107; Hill v. Epley, 31 Penn. 331; Cuttle v. Brockway, 32 Penn. 45; Benbocker v. Okeron, 36 Penn. 519; Eldrid v. Hazlitt's adm'r, 33 Penn. 307; Boggs v. Mercer Mining Co., 14 Cal. 279-366; Taylor et al. v. Ely, 25 Conn. 251.

To make defendant's answer to questions matter of estoppel, it should be shown what those questions were, and that defendant knew the object of them, and that his answers would be relied on.--Hackett v. Callender et als., 32 Vt. (3 Shaw,) 97.

Glover & Shepley, for defendant in error.

FAGG, Judge, delivered the opinion of the court.

The record in this case presents but few questions for consideration. It is brought to this court by writ of error to the St. Louis Circuit Court. The Exchange Bank instituted a suit by attachment against Cooper, plaintiff in error, to recover a balance which was alleged to have been overdrawn on his account with the bank. The ground of the attachment stated in the affidavit was that Cooper was a non-resident of the State. The return of the officer showed that he was personally served, and the defendant appeared in proper time and filed his plea in abatement, which was tried by the court sitting as a jury.

The defendant asked the court to give four declarations of law. The first two were given with certain additions attached to them by the court upon its own motion, and the third was refused altogether; to all of which exceptions were duly taken at the time. The fourth was given in the shape it was asked.

Defendant's second declaration is as follows: “2d. Though the evidence shows that defendant, at the time the attachment was sued out, had a wife living outside of the State of Missouri,--if the fact is also proved that he had previous to that time separated from his said wife, and was at that time living separate from her and keeping house and doing business in the State of Missouri, and slept and made his home at his said house and place of business, he was in contemplation of law a resident of this State, and plaintiff cannot recover on the plea in abatement”--to which the court added of its own motion the following--“unless defendant had represented himself to plaintiff to be a non-resident.”

The action of the court in this matter is to be taken as a refusal of the instruction, so far as the defendant is concerned, and as giving it upon its own motion. This practice was condemned by this court as improper in the case of Meyer v. Pacific Railroad, decided at the present term p. 151 The law was correctly stated, and the instruction should have been given as asked by the defendant.

For some reason unexplained by the record, a witness, introduced by the defendant to prove defendant's residence in the State, had been interrogated by the court as to the fact of his having a wife living...