On Motion for JRe-Jiearing.
Pee Curiam.It is insisted by respondent that the foregoing opinion is wrong, principally, in two respects : First, because the court could not consider the grounds of decision by the trial court as stated in the opinion filed therein by the judge; and, second, even if we could look to the opinion, our construction of the pleadings is in conflict with a recent decision of the Supreme Court. t
I. As to the first objection, we have only to add to what has already been said in the opinion delivered herein, that the trial judge rejected all the declarations of law asked by the plaintiff, and as the defendant asked none, the court, trying the case without a jury, proceeded to set out, in an opinion filed therein, its view of the facts and law leading to its conclusion. In such case we think the opinion of the court may well be “ treated as declarations of - law given by him of his own motion, in tne absence of any given in a more formal *651manner.” Hanel v. Freund, 17 Mo. App. 618, 621. While snch reasons, so given by the trial judge, could not lead to a reversal, if he gave a wrong reason for a just conclusion, yet, in a case like this, where we are strongly persuaded that the conclusion reached by the trial court is not well sustained by the evidence, the discovery by us of the fact, disclosed by his opinion preserved in the bill of exceptions, that he was probably led to such conclusion on a false assumption as to the facts admitted by the pleadings, justified the advantage taken of it in the opinion herein.
II. In support of the proposition that the opinion is in conflict with a recent holding of the Supreme-Court, we are referred to the opinion of Sherwood, J.r in Breckenridge v. The American Insurance Company (87 Mo. 69-70).
The.cases are not parallel. As to the first pleading construed, so far as we are enabled, from the meager-statement of the opinion, to gather, it would seem that the averment of the petition was, that the building in question was burned on November 28,1879. The answer was, that defendant denies the destruction of the property as alleged. The court held that this was tantamount to an admission that the house was burned, but not on the day or in the way alleged.
This is, obviously, quite different from an answer denying the matter affirmed in the language of the affirmation. By saying he denied the destruction as alleged, merely put in issue the date and manner, and not the fact, of destruction; and, that such was the intention of the pleader, is evidenced by the subsequent parts of his answer in which he, in effect, conceded the burning.
The next allegation of the petition was, that “the policy was assigned on the fifteenth day of October, 1879, by McMillan to plaintiff, and that said assignment was approved in writing by the regular agents of the defendant at Springfield, Missouri.” The answer was : *652“Defendant denies that it ever consented to said pretended assignment of said policy, and that the acts of its agents at Springfield, in consenting thereto, was made without any authority conferred on them by this defendant.”
As a matter of course, this was not a denial of the existence of the agency, or of their act of approval of the assignment. It only put in issue the want of authority of the agents to do the act.
Palpably, there is no conflict between this and what is held in the adjudications cited in the opinion. The distinction is a good one, and we shall adhere to it until overruled by the Supreme Court, that a denial in the terms of the averment of the petition will be deemed sufficient after verdict, to put in issue all the facts thus blended in the petition in ’one sentence. The pleader who sees fit to thus blend two separate facts, that he was discharged without just cause, ought not to be allowed, after going to trial without objection, to claim that the answer denying the averment as made in its very terms, admits the fact of discharge. Had the denial been, that he denied he discharged defendant as alleged, it would have put in issue only the justice of the discharge.
We are satisfied, on a review of the evidence, that the plaintiff ought to have a new trial in this case.
The motion for re-hearing is denied.
All concur.