McClure v. National Bank of Commerce In St. Louis. Charles D. Mclure

• Decision Date: 31 December 1914
• Parties: CHARLES D. McCLURE, Appellant, v. NATIONAL BANK OF COMMERCE IN ST. LOUIS. CHARLES D. McLURE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS, Appellant
• Court: Missouri Supreme Court

172 S.W. 336

263 Mo. 128

CHARLES D. McCLURE, Appellant, v. NATIONAL BANK OF COMMERCE IN ST. LOUIS. CHARLES D. McLURE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS, Appellant

Supreme Court of Missouri

December 31, 1914

Appeal from St. Louis City Circuit Court. -- Hon. William M. Kinsey Judge.

Reversed and Remanded (With directions.)

Thomas Bond and W. G. Schofield for plaintiff.

(1) The value of land should be ascertained by evidence of what the same was reasonably worth and could have been sold for at a given time, on a sale by one willing, but not obliged to sell, to one willing and able but not obliged to buy. Railroad v. Knapp Stout & Co., 60 Mo. 410; Riley v. Cullen, 101 Mo.App. 43; Lawrence v. Boston, 119 Mass. 126. (2) The per curiam order required the trial court to try the single issue of the value of the land in July, 1909, "all other issues having been properly tried and determined before." Therefore, to have permitted defendants to file their amended answer and to introduce evidence in support of the defenses therein attempted to be raised, to-wit, estoppel and ratification, would not only have been contrary to the positive mandate of this court, but any finding thereon would have been coram non judice, and of consequence void. Chouteau v. Allen, 74 Mo. 59; Keaton v. Jorndt, 259 Mo. 179. The pretended defenses of estoppel and ratification sought to be injected into this case by defendant are not only contrary to the mandate of this court, but contradictory of the entire position assumed by the defendant in the original trial and upon which the defendant staked its case; i. e., that the property in question belonged to the defendant and that plaintiff had absolutely no interest therein. See opinion of Judge Graves herein, 252 Mo. 510. DeLashmutt v. Teetor, 261 Mo. 412.

George L. Edwards and Edward D'Arcy for defendant.

(1) The trial court should have permitted the defendant after this case was remanded for further hearing to have amended its answer so as to set up the defense of estoppel as proposed. Per curiam opinion on prior appeal, 252 Mo. 524. (2) The prior opinion in this case cannot fairly be construed as foreclosing to the defendant the question of estoppel sought to be raised by the amended answer which it proposed to file in this case, for two reasons. First, this question was not raised or determined on the former appeal, and upon the theory upon which the case was tried before this question could not have been raised. This case was first tried upon the theory that it was a suit for an accounting for the proceeds of the sale of the property, and in affirmance of that sale. It would be manifestly unjust and inequitable therefore, to say that this defense was foreclosed to the defendant by the prior opinion in this case. Second, even if the prior opinion could be construed as foreclosing this defense, it would be manifestly unjust and inequitable, and should, therefore, be modified so as to permit of a full and fair consideration of this defense. Mangold v Bacon, 237 Mo. 511. (3) The plaintiff is estopped to contend that the reasonable market value of the property at the time it was sold by the defendant was more than $ 40,000. Riley v. Cullen, 101 Mo.App. 32; 16 Cyc. 785; Bigelow on Estoppel (6 Ed.), pp. 602-603; Sedgwick on Damages (9 Ed.), sec. 1301.

FARIS, J. Bond, J., having been of counsel does not sit.

OPINION

In Banc

FARIS J.

-- This is a suit in equity which comes to us upon cross-appeals. Since a decision of one appeal will necessarily dispose fully of the other, the cases, by consent of counsel, have been consolidated. Both cases, and all points involved therein, will be disposed of in one opinion.

This is likewise the second cross-appeal in this case. All of the facts of the case and all of the points involved, except the one issue hereafter to be adverted to, are set forth and disposed of upon the former cross-appeals, our rulings upon which will be found in the case styled McLure v. Bank of Commerce, 252 Mo. 510, 160 S.W. 1005. Reference for the facts and the matters held in judgment upon the former appeals, is hereby made to the former opinion, should the curious desire more light or should such light become necessary to an understanding of the points in the below opinion.

When the case was here before our learned Brother Graves, who wrote the opinion of the court, took the view that the case ought to be reversed and remanded with directions to the court nisi to enter up judgment in accordance to the views expressed in the opinion. Our Brother Graves upon the very important point as to the value of the land in dispute, held under the evidence in that record, that this land was worth the sum of $ 58,887. A majority of us, however, yielded to the earnest insistence of counsel for defendant that the rulings of the lower court and the allegations of plaintiff's petition being regarded, defendant might have been led, to his hurt, not to offer on the measure of value all available testimony. Defendant most strenuously insisted that this was the case, and that much testimony in proof of his contention that the land in question was of a value far less than that found by our Brother Graves, was readily obtainable. In fairness, therefore, and gathering as stated, from the record, that counsel might well have been misled to his hurt, we sent the case back for a new trial, by a per curiam opinion, on the single issue of the value of the land. In that opinion it was expressly provided that the new trial should be confined to that single issue, and it was further ruled that "all other issues had been properly tried and determined before." Permission, however, was given by our opinion to either party to so amend the pleadings as to clearly draw the issue upon this question of value of the land in dispute.

When the case went back to be retried below plaintiff amended his petition by interlineation in such wise as to raise with sufficient clearness the issue as to the value of the land in dispute on the date in 1909 when this land was wrongfully, as our former opinion held, sold by defendant. The defendant thereupon asked leave to so amend its answer as to raise for the first time in the case the issue as to whether plaintiff by statements made by him and his agent, one Mellor, to defendant in 1908, had not led defendant to believe that the land in question was worth only the sum of $ 40,000, thus, by the proposed amended answer, raising the issue of estoppel. Likewise the proposed amended answer raised the issue that plaintiff had ratified and approved the sale by defendant of the land at the sum and price of $ 38,000. Defendant's theory of ratification is based upon a letter of plaintiff to defendant, dated January 4, 1910, in which plaintiff, replying apparently to a written demand for the settlement of plaintiff's account, asks that he be given credit for the sum of $ 20,000, which he says was the surplus proceeds of the sale of the land in dispute after payment of the amount advanced by defendant to buy the land in at the foreclosure sale. The proof shows defendant then refused to give any credit to plaintiff on this account, and claimed to have owned the said land absolutely at the time it was sold to Mrs. Koehlor. Upon objection of plaintiff to the filing of the amended answer containing the two new defenses of estoppel and ratification, leave to file same was denied by the court and the objections of plaintiff thereto were sustained. Plaintiff and defendant then proceeded to trial upon the issue as to the value of the land alone. Defendant was permitted to offer apparently all evidence desired and available to it upon the issue of estoppel and ratification, though the probative effect of such evidence was by the ruling of the trial court confined solely to its competency as showing the value placed upon said land by plaintiff shortly preceding the date of the sale thereof.

The learned trial court, upon the conclusion of all evidence upon the issue of the value of the land, found that the same was worth the sum of $ 52,500 as of the date this land was sold by defendant, and made an accounting between the parties and rendered a decree upon the basis of this value. From the finding of the court plaintiff appealed upon the ground that the value placed on the land by the court was smaller than was justified by the evidence offered. Defendant has appealed because such value was too large, and upon the further ground that it was error for the court to refuse to defendant permission to file the amended answer containing the said allegations of estoppel and ratification. The below opinion will be confined to a discussion of these points only.

I. As forecast in our statement of the case both sides being dissatisfied with some part of the decree, have appealed; the plaintiff for that the value of the land as the court nisi found it, was too little, and the defendant for that it was too big, and for the further reason that it was error for the trial court to refuse defendant permission to amend its answer so as to set up estoppel and ratification as defenses.

Since we may logically deal with the respective contentions of the parties touching the finding as to the value of the land under one and the same head, we will first examine the contention of alleged error based upon the refusal of the court to permit an amendment of defendant's answer.

When this case was here before it had been tried below upon a mere general denial. No estoppel of whatever sort was pleaded by defendant. It contented itself by saying for defense, this only: "Defendants in the above-entitled cause, answering the petition of the plaintiff, say they deny each and every allegation therein contained."

This court on...