Henry v. Bassett

I concur in the opinion of Ellison, J., for •the reason that.by that opinion the defendant is given the whole benefit on account of the facts especially men-.■tioned in the opinion of Philips, P. j., asked by the *675defendant in Ms answer, and during the trial. The defendant is entitled to no greater benefit, on account of said facts, at the hands of this court. The defendant did not plead said facts as an estoppel. Neither did he, In his declarations of law, treat said facts as an estoppel. We cannot treat said facts as an estoppel now, in my opinion. Haying tried the case on a certain theory, the defendant cannot obtain relief here contrary to such theory.'

on motion for re-hearing.

I. Can a party be sued for money had and received before it is received, and then recover for money received after the institution of the suit ?

II. If a refusal to render services, under the circumstances of this case, might constitute an abandonment (as intimated by the supreme court in Henry v. Bassett, supra), then the principle is clearly established that a refusal to do any other material thing, under the contract, might also constitute an abandonment. The Instruction given for the plaintiff is irreconcilable with *673this portion of the opinion of the supreme court, and the opinion of this court sanctions that instruction.

III. The institution and prosecution of a suit by plaintiffs’ testator, as attorney, or otherwise, to prevent the collection of the money specified in the warrant, ought to have operated as a bar to any recovery by him, however pleaded, whether as estoppel, or otherwise ; and, the court below ought to have so found, regardless of pleadings and instructions. Miss. Co. v. Jaekson, 51 Mo. 23; Bell v. Railroad, 4 Wall. (U. S.) 598 ; 2 Herne Estoppel, sect. 1264; 1 Greenl. Evid., sect. 531.

IY. The judgment of the circuit court ought to be reversed, so that the present state of facts could be properly adjudicated.

This cause was before the supreme court, and is found in 75 Missouri Reports, page 89. A full and complete history of the case may be had by reference to that report and the case of Henry v. Mount Pleasant Township (70 Mo. 500). After a reversal of the cause in the supreme court the answer was amended and a portion thereof stricken out, the objection to which has not been saved. The instructions are lengthy and will not be set out here, as we consider the action of the court in giving those for plaintiffs, and refusing those offered by defendant, excepting the eighth, as fully justified by the decision of the supreme court. The warrant issued to defendant, he admits, has been paid to him. The trial, in the main, has been in harmony with the enunciation of the supreme court.

There does appear to us one error committed against defendant. The amended answer sets out that when the seven thousand dollar warrant was issued to defendant, plaintiffs’ testator procured, and assisted in procuring, the issuance of separate injunction proceedings, designed to annul and cancel the warrant, and that, in order to obtain the benefit thereof, defendant was compelled to *674defend these injunction suits, and necessarily expended, in such defence, three hundred dollars.' The evidence sustains this allegation without contradiction. The court refused an instruction, number eight, on this branch of the case. As this expenditure was necessary to the preservation of the fund, the half of which plaintiff is seeking, we think- it should be allowed against plaintiffs, especially as plaintiffs’ testator was the cause •of the proceedings, and in consequence of the expenditure. As the cause was, in all other respects, properly tried, most of the points being res adjudicate we will affirm the judgment, the cost of this appeal being taxed . against plaintiff, if he will remit three hundred dollars,' and the interest thereon, within ten days. If the remit- , titur is not entered, an entry of judgment of reversal of ■»the judgment, and remanding of the cause will be en-

tered.

I concur in reversing this judgment, -.and am of opinion that, on the facts of the case, the finding of the trial court should have been for the defendant. The uncontradicted fact of plaintiff’s conduct in inaugurating, and attempting to maintain the proceedings to prevent the collection of the fee, and in fact to destroy it, coupled with other facts in proof, showed a clear case of abandonment by plaintiff of all interest in or claim to the fee. His attempt perpetually to enjoin the payment of the fee, was not only on grounds of antagonism to its very existence, but was a renunciation of all interest in it by him; and his attempt by this suit .afterwards to have the defendant divide the repudiated demand with him, is as contradictory in law as it is indefensible in ethics.