McLure v. National Bank of Commerce

• Decision Date: 01 December 1914
• Docket Number: No. 18339.,No. 18402.,18339.,18402.
• Citation: 172 S.W. 336
• Parties: McLURE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS (two cases).
• Court: Missouri Supreme Court

172 S.W. 336

McLURE v. NATIONAL BANK OF COMMERCE IN ST. LOUIS (two cases).

No. 18339.

No. 18402.

Supreme Court of Missouri.

December 1, 1914.

Rehearing Denied December 31, 1914.

1. ESTOPPEL (§ 110) — PLEADING — NECESSITY.

Estoppel to be available must be pleaded, unless it so arises as to afford no opportunity to plead it, or unless it is shown by plaintiff's proof.

2. APPEAL AND ERROR (§ 1212) — REMAND OF CASE WITH DIRECTIONS — PROCEEDINGS IN TRIAL COURT — ISSUES.

The Supreme Court, which reversed a judgment in an action in which defendant pleaded the general issue only and which remanded the case for new trial on the single issue of the value of the real estate involved, but with the right of the parties to so amend their pleadings as to clearly draw the issue of value, conclusively settled all other questions, and defendant could not for the first time present the issue of estoppel.

3. APPEAL AND ERROR (§ 895) — FINDINGS — REVIEW.

In a suit in equity involving the value of real estate, the Supreme Court, exercising the right to try the issues de novo, may find in view of the evidence a value in excess of that found by the trial court.

In Banc. Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by Charles D. McLure against the National Bank of Commerce in St. Louis. From a judgment granting relief, both parties appeal. Reversed and remanded, with directions.

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.

Thomas Bond and W. G. Schofield, both of St. Louis, for plaintiff. George L. Edwards and Edward D'Arcy, both of St. Louis, for respondent.

FARIS, J. (after stating the facts as above).

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 the former appeal approved all that was done by the trial court, except that, upon the insistence of defendant that it had been so misled by the attitude of plaintiff and by the ruling of the trial court that it had failed to offer much obtainable testimony as to the value of the land in dispute, we held, as we say in the statement, that in the interest of fairness we ought to send this case back and allow defendant to offer any additional evidence it might have upon this question. So, while agreeing to all that was said upon the merits, a majority of us disagreed with the opinion only as to the finality of the amount found as the value of the land. On this question we made in our opinion per curiam, among others, these observations, viz.:

"A majority of the court, however, are of the opinion that the cause should be remanded to the end that the issue of the value of the land may be more thoroughly tried, and the whole court is of the further opinion that the new trial should be confined to that single issue; all other issues having been properly tried and determined before. Either party may so amend the pleadings, if such is desired so as to clearly draw the issue upon this question. The judgment is therefore reversed, and the cause remanded to the circuit court, with directions to hear testimony upon the value of the land in dispute at the date of the sale, and to confine such new trial to that issue alone, and, after having determined such value, to then enter up judgment in accordance with the facts heretofore found and then found upon this issue."

Estoppel must be pleaded (Loving Co. v. Cattle Co., 176 Mo. 330, 75 S. W. 1095; Cape Girardeau, etc., Ry. Co. v. St. Louis, etc., Ry. Co., 222 Mo. 461, 121 S. W. 300), unless it arises in such wise as to afford no opportunity to plead it (Long v. Lackawanna, etc., Co., 233 Mo. 713, 136 S. W. 673), or be shown by plaintiff's proof (Brown Construction Co. v. MacArthur, 236 Mo. 41, 139 S. W. 104). The general denial set out above shows that...