ON REHEARING.
SMITH, P. J.— After the foregoing opinion was delivered, a rehearing of the case was granted, but a reargument and re-examination of it has not influenced a conviction in my mind that I should recede from the conclusion announced in that opinion.
It has been seen from a synopsis of the second count of the petition contained in said opinion that it it therein alleged that the plaintiffs and defendant entered into an agreement which was to the effect that the defendant would at the sale under the execution issued on the judgment against Taylor, bid in the land levied on and hold the title so acquired for the use and benefit of both plaintiffs and himself; and that if the latter sold the land he would divide the net proceeds arising therefrom — or, if not so sold then that the land *41so acquired should be equally divided between them; that in pursuance of such agreements the said lands were bid in by defendant and subsequently sold by him whereby be realized a large sum of money which was subject to division and distribution' between the parties to such agreement. The defendant answered this count by a general denial.
At the trial the plaintiff, M. R. G-ibson, was called as.a witness in behalf of the plaintiffs and testified to the facts, alleged in the said count of their petition. By bis testimony the plaintiffs established a prima facie right to recover on their said second count. It is however true that after such prima facie case had been made out by his testimony in chief, that on cross-examination by the defendant he testified without the interposition of any objection thereto by the plaintiffs, that the latter at the time of their entering into said agreement with defendant were insolvent and indebted to Schrock in about three thousand dollars and that the title to the land so acquired by defendant was, as to plaintiffsinterest, vested in the defendant for the' purpose of hindering and defrauding the said Schrock in the collection of his said debt. Testimony of the said witness was full and explicit as to the fraud and was received without objection.
After such testimony had been received as has been stated and near the close of such cross-examination the said witness was asked by defendant if he had not entered into said agreement with defendant to put the property that was to be bought in such shape that said Schrock could not reach it. To this question the plaintiffs objected on the ground that it was immaterial. This objection was by the court overruled and the witness was permitted to answer. No motion was made to strike from the record the testimony of the witness as to the fraudulent purpose of the agreement, nor did the objection made extend to it. There was no objection to the reception of such testimony or to any part of it that it was incompetent or inadmissible under the answer. Had the objection been sustained the case *42here would not have been different, as abundant unquestioned testimony proving the fraud would have remained.
The question thus presented is whether or not the unobjected-to testimony disclosing the fraudulent purpose of the plaintiffs should have, in view of the state of the pleadings, been given any consideration by the trial court. The rule has been declared to be that when either party to a contract or transaction applies to a court for aid, if the plaintiff can not open his case without showing he has broken the law, the court will not assist him, whatever his claim in justice may be upon the defendant. Hatch v. Hanson, 46 Mo. App. loc. cit. 329 and authorities there cited. The principle of public policy is ex dolo malo non oritur actio. No court will lend its aid to one who founds his cause of action upon an immoral or illegal act. Attaway v. Bank, 93 Mo. 485; Atlee v. Fink, 75 Mo. 102.
And so the rule may be said to be firmly established in this State to the effect that where there is nothing on the face of the petition or in that of the contract sued on which indicates that it — the contract — be illegal or immoral, the facts constituting the illegality or immorality to be available must be pleaded as an affirmative defense. Sybert v. Jones, 19 Mo. 86; Moore v. Ringo, 82 Mo. 468; Musser v. Adler, 86 Mo. 445; McDearmott v. Sedgwick, 140 Mo. 172; St. Louis Assn. v. Delano, 108 Mo. 217; Reese v. Garth, 36 Mo. App. 641; George & Lowe v. Williams, 58 Mo. App. 139; Schwartz Bros. Com. Co. v. Vanstone, 62 Mo. App. 241. If the defendant untruly denied the making of the agreement alleged in the second count of the plaintiffs ’ petition, that should not enable him to avail himself of the accidental fact of the illegality appearing in the testimony. It has been ruled here and elsewhere that an affirmative defense is of no avail if not pleaded, though the testimony disclose it. Schwartz v. Vanstone, supra; Reese v. Garth, supra; McDearmott v. Sedgwick, supra; Dinglidein v. Railroad, 9 Bosw. (N. Y.) 79. Or, as said in Musser v. Adler, *43supra: “It is not enough, that evidence may appear tending to establish facts which if pleaded would defeat a recovery.”
• It must be considered that the agreement alleged in said count of the petition was in every respect legal and valid. There is nothing on its face indicating any other than a valid and binding agreement between the parties thereto. If the defendant had desired to invalidate the agreement on the ground that it was entered into by the plaintiffs to hinder and defraud their creditors, instead of resting his defense on a mere denial of the allegations of the said count, he should have specially pleaded such extrinsic matter so that it could have been made issuable at the trial and later on considered on appeal. It follows, therefore, that the testimony of the plaintiff which on cross-examination disclosed that the agreement pleaded was entered into by the plaintiffs to hinder and defraud their creditors, was not available as a defense to the defendant under his answer and was and is entitled to no consideration.
But it is contended by the defendant that as the plaintiffs made no objection to the testimony disclosing the fraudulent purpose with which they entered into the agreement, that therefore such testimony should have been considered though the answer was but a general denial.
As I understand it, in cases like the present, where the evidence elicited by defendant and received on the trial without objection tends to establish a defense that is new matter, the plaintiffs by their failure to object to such testimony do not thereby waive the question of pleading, and render such testimony competent under the general denial as if specially pleaded by the answer. The rule in-respect to waiver of the question of pleading is limited in its operation to these cases where the unobjected-to testimony tends to establish an unpleaded defense which is not new matter. There is nothing in Stewart v. Goodrich, 9 Mo. App. 125; Carter v. Shotwell, 42 Mo. App. 663 and Madison v. Rail*44way, 60 Mo. App. 608, that decides anything to the contrary.
If, however, these cases should he considered as holding that a plaintiff in a case like the present, where the unobjected-to testimony received establishes an nnnnpleaded defense that is new matter, waives the ques-' tion of pleading and thereby renders such testimony •under a- general denial as competent as if such new matter had been specially pleaded, then it is clear that such cases to that extent are out of harmony with Sybert v. Jones, supra, and the other cases following it which have been already cited.
I therefore conclude that the affirmative defense of fraud, which the unobjected-to testimony tended to establish, is not, under the general denial contained in the answer, entitled to any consideration in the determination of the issues arising in the case, and for that reason I concur in the result reached in the opinion referred to at the outset.
Broaddus and Ellison, JJ., concur.