Opinion
No. 30521.
March 20, 1933.
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.
APPEAL from Circuit Court of Lauderdale County.
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 Fed. 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 Calif. 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 Fed. 676; Board of Trustees v. Spitzer (D.C.), 255 Fed. 136; Godchaux Sugars v. Meridian Wholesale Co., 289 Fed. 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.
Under sections 173 to 178, inclusive, Code 1930, authorizing attachments in chancery, the appellees filed their bill of complaint in the county court of Lauderdale county against the appellant, Tom S. Barber, a nonresident of this state, alleged to be indebted to the appellees, and other resident defendants alleged to have in their hands effect of, and to be indebted to, said nonresident defendant. The nonresident defendant entered his appearance and pleaded that the execution of the contract and notes sued on was procured by fraud on the part of appellees' agent. From a personal decree against the principal defendant for the sum sued for, and against the garnishee defendants condemning the sums owing to him, the principal defendant only appealed to the circuit court, and from a decree of the circuit court affirming in all respects the decree of the county court this appeal was prosecuted.
The motion of appellees to dismiss this appeal because none of the garnishee defendants have been summoned to appear before this court and join in the appeal must be overruled. Section 22, Code 1930, providing for summons and severance when all the parties to a judgment or decree do not join in an appeal, has no application to appeals from a county court to the circuit court. Furthermore, no objection was raised in the circuit court that all the parties to the decree had not been summoned to join in the appeal, and such objection could not be raised here for the first time. The only party appellant in the circuit court has appealed to this court.
The finding of the county court that the execution of the contract and the notes sued on was procured by fraud is fully sustained by the proof. We think, however, that it was erroneously held that the appellant was estopped to rely upon the defense of fraud for the reason that before the attempted cancellation of the said contract and notes he assigned, as reasons for such rescission, oral representations of the appellees' agent rather than the fraud pleaded and proved. In Odeneal v. Henry, 70 Miss. 172, 12 So. 154, 155, and Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708, it was held that if a party attempts to rescind his contract on a ground not good in law, but there exists at the time a ground that is good in law, he can later rely on the good ground and is not bound to stand on the false ground first assigned, and we do not agree with the contention of counsel that these decisions based this holding on the fact that the party did not know of the ground on which rescission was based at the time he assigned other reasons therefor. In Odeneal v. Henry, supra, it was expressly held that it was of no importance whether the party had knowledge of the justifying reasons at the time other reasons were assigned, but that "the all-important question is, did good reason actually exist at the time of" the rescission?
We think the decree of the county court was erroneous, and therefore the decree of the circuit court will be reversed, and the cause remanded to be proceeded with in accordance with the statute.
Reversed and remanded.