DISSENTING OPINION.
BBOWN, J.—I.I concur in that part of the opinion of my brother Graves, which holds that the power of attorney received by Charles E. Platt from his mother, Elizabeth W. Platt, did not aiithorize him to pledge for his individual debts the corporate stock which stood in the name of his mother. The power of attorney gave notice that it only authorized Charles, E. Platt to convey for the use and benefit of his mother-the stocks standing in her name.
There is evidence in the record tending to prove that the defendants knew when they accepted the stocks in dispute as security for the account of Charles E. Platt, that said stocks did not belong to Charles. Most of the stocks had been purchased for Mrs. Platt *314through, defendants’ brokerage firm. This evidence, .however, was nullified by the generous admission of plaintiffs’ attorney that the defendants acted in good faith when they accepted Mrs. Platt’s property to • secure debts incurred by Charles R. Platt.
II. The law of ratification as announced in the opinion of my learned brother, is, in a broad general sense, correct. I also agree with him that this case “is one largely of fact, rather than law.” However, after diligently rereading the record, I am constrained to believe that the final conclusions recited in the majority opinion are incorrect.
• That plaintiffs received from Francis Brother & .Company $1833.15 as part of the proceeds of plaintiffs’ stock, there is no dispute; but I am not able to find evidence in the record which proves that the plaintiffs or their attorney, Mr. Lionberger, at the time of receiving said money, knew that the title of •Francis Brother & Company to some fifty thousand dollars worth of said stocks was invalid.
Before executing the power of attorney Mrs. Platt had transferred 300 shares of the stock to the National Lead Company, worth approximately $30,-000, to her son, Charles R. Platt, by indorsing same in •blank and giving him oral permission to pledge it for his individual debts. That amount of the stock ■ pledged by Charles R. Platt to Francis Brother & Company was undoubtedly a legitimate transaction, so far as the defendants were concerned; and in or,der to hold plaintiffs to have ratified the illegal pledg- ■ ing of stock by Charles R. Platt, it would 'appear to be necessary to prove that Mrs. Platt, or her attorney, not only knew that the $1833.15 was the proceeds of stock pledged by her son to Francis Brother & Company, but also that it was the proceeds of stock which he had no lawful power or right to so pledge.
*315Where an agent performs some acts which are legal and within the scope of his authority, and other acts which are illegal and beyond his lawful powers, there is no rule of law which declares that the principal by accepting all or a part of the fruits of those acts which'are legal, thereby ratifies the illegal and unauthorized acts of his agent.
However, I do not think that on the law and facts this case turns on such a fine distinction as above outlined.
To my mind, the decisive point in this case is, did Mrs. Platt, or Lionberger, at the time of receiving the check for $1833.15, know that most of Mrs. Platt’s stocks had been pledged to the defendants under and through a power of attorney which was insufficient to authorize Charles R. Platt to pledge such stocks to secure his individual debt.
If they knew that Francis Brother & Company had not received title to or a valid lien upon a large paid of the stocks because of the insufficiency of the power of attorney, and with that knowledge they received and appropriated part of the proceeds of the stocks illegally pledged, they are barred from a recovery.
With these general remarks, I now go to the evidence.
On Sunday, December 6, 1903, Charles R. Platt .told his mother that he had lost “every cent” of her money through speculations.
Mrs. Platt testified that she was so shocked by the information imparted to her by her son Charles that she immediately became ill. She seems to have been confined to her room at the time the $1833.15 was received and sent to her. On cross-examination, she testified as follows:
“Q. And when did your other children know that there had been turned over from Francis Brother & Company fifty shares of the Cotton Compress stock *316and the check for eighteen hundred and thirty-three dollars and fifteen cents? A. They all knew it as soon as I knew it.
“Q. And when did yon first know it? A. That I cannot remember, sir; I was very ill. I don’t remember. I was very ill at the time, and I don’t remember.
“Q. "What was done with the check? A. The check was deposited in 'the hank.
“Q.. Was it deposited in the hank to your credit? A. Yes, sir.
“Q. Do yon remember whether or not yon indorsed it for the purpose of having it deposited in bank to your credit? A. I did indorse it.
“Q. Will yon say if that is your signature, ‘Elizabeth W. Platt’ on that check which I hand yon? A. Yes, sir, this is my. signature, but very faint. I was very sick at that time.”
The check does not show on its face that it was in payment or settlement of any account. It reads as follows: .
“Francis Bro. & Co., 214 N. Fourth'St., St. Louis, December 15, 1903, No. eighty-eight hundred and two. Pay to the order of Oscar Hiemenz or ourselves $1833.15, eighteen hundred and thirty-three and fifteen one hundredth dollars, Francis Brother & Co., To> Merchants-Laclede National Bank.”
The check, as introduced, was indorsed as follows:
“Pay to the order of C. R. Platt.
“Oscar Hiemenz,
“Pay to the order of Elizabeth W. Platt.
“C. R. Platt.
“Elizabeth W. Platt.”
The evidence of Mrs. Platt and Lionberger is to the effect that Mrs. Platt had no further conversation with her son, Charles R. Platt, until after the check for $1833.15 was brought to her by another son.
*317Lionberger was called by other members of the family on said December 6, 1903, and employed to ‘save whatever he cordel from the wreck.” He did not confer at that time with Mrs. Platt, who seems to have been in her room too ill to transact business.
Lionberger conferred with Charles E. Platt and other members of the family, and obtained such information as he could regarding the illegal transactions of Charles B. Platt. He testified that Charles brought him many statements and memoranda regarding his dealings with defendants, and upon learning through Charles that there was some property of Mrs. Platt still undisposed of in the hands of Francis Brother & Company, particularly some Franklin Bank stock, he demanded of Charles that he procure from Francis Brother & Company whatever property was left and deliver the same to him (Lionberger), otherwise, he would attach such property in the hands of Francis Brother & Company.
With that direction, Charles went to the office of defendants, received the Franklin Bank stock, also some stock in the Cotton Compress Company, together with the check for $1833.15, and delivered the same to Lionberger.
Lionberger further testified that he put in the time between December 6 and December 15 in trying to find out the status of Charles E.- Platt’s dealings with defendants. Just how much he did find out about the details of those transactions (which covered a period of more than two years) is not made clear; but there is no evidence, nor even an intimation anywhere in the evidence, that Lionberger ascertained that some $50,000 of Mrs. Platt’s stocks had been pledged under and through the power of attorney before mentioned.
Lionberger denies that at the time he received the $1833.15 check he had seen the final statement issued bv the defendants to Charles B. Platt.
*318The final statement of Charles E. Platt’s account issued to him by the defendants, contains no reference to the power of attorney.
It is clearly inferable from Lionberger’s evidence that Charles E. Platt brought to him all the statements which he (Charles) had received from Francis Brother & Company prior to the last statement. Those statements likewise, do not refer to the power of attorney, nor impart any information as to how Mrs. Platt’s stocks were pledged.
I have not been able to find one word in the evidence of any witness tending to prove that Lionber-ger had knowledge of the power of attorney or what stocks had been pledged under that power of attorney prior to the time he accepted the $1833.15.
Mr. ■ Lionberger was cross-examined at some length by the learned attorneys for the defendant, and it is peculiar that they did not interrogate him regarding this most important feature of the case.
The majority opinion assumes that Lionberger understood the nature and purport of the power of attorney which Mrs. Platt had given her son, but I find that the power of attorney was brought to Mrs. Platt by her son, and she signed it without reading it. It is therefore not at all probable that she thought of it any more or that she called Mr. Lionberger’s attention to it or that she knew what powers it really contained. The testimony on that point reads as follows :
“Q. What occurred in the interview between yourself and your son at the time you signed the power of attorney? A. Only that he said it was best that I should leave that in case of necessity in my absence. I signed it without reading it.”
The majority opinion proceeds upon the theory that Mrs. Platt having signed the power of attorney, was in law bound to know its contents. I do not concede that under the issues here presented she was *319bound to know more about tbe power of attorney than-sbe did actually know; and I am sure, tbat even if. sbe did understand tbe full legal effect of tbe power of attorney, sbe was not bound to know tbat ber son Charles bad made pledges wbicb tbat power of attorney did not authorize him to make and thereby dissipated $50,000 worth of ber stocks.
In other words, tbe execution of tbe power of attorney did not give ber constructive notice tbat it bad been misused.
Because Charles B-. Platt could have informed bis mother and Lionberger, ber attorney, tbat be bad used tbe power of attorney in pledging some $50,000 worth of ber stocks, tbe majority opinion assumes and surmises tbat be did so.
If I have correctly interpreted tbe law, ratification cannot be established in tbat manner. In this State when matters of ratification or estoppel are relied upon as a defense, they must be pleaded. [Geo. B. Loving Co. v. Hesperian Cattle Company, 176 Mo. 330, l. c. 353 and 354; Golden v. Tyer, 180 Mo. l. c. 204.]
Like all other affirmative defenses, a ratification when pleaded must be proven, and cannot be built up by inferences and surmises not fully established by tbe evidence. This doctrine is ably supported in an opinion written by Judge BOND while a member of tbe St. Louis Court of Appeals. [Gaskill v. Lead & Zinc Co., 84 Mo. App. l. c. 525.]
"What seems to have misled my brother most seriously is tbe evidence of J. D. P. Francis, one of tbe defendants, wbicb is as follows:
“Witness: May it please tbe court, there is one matter I would like to state. Mr. Lionberger, it would come in tbe form of a question something like this: Did Charles R. Platt ever say anything to you himself' regarding tbe knowledge tbat bis mother bad of any *320of these transactions, or his having a talk with her regarding same ?
“Mr. Lionberger: I of course object to that, as improper evidence but for your exoneration, I don’t care, put it in.
“Witness: There is no exoneration about it. It was at a late stage of the case. It was merely this, in connection with the sale of these stocks at the latter end, and it was quite at the latter end. It must have been about the 12th of December, somewhere along there. I said to him, ‘Charlie, what does your mother think of the status of your account and these general transactions.!’ ‘Well,’ he said, ‘I had a talk with her on Sunday and at first she was very much shaken up and overcome, but finally’ — now this word is not the one that I am certain that I can remember, but reconciled is the one that I recall, — ‘but that she became reconciled to it.’
“Q. What time of the year ? A. Well, it was on the 6th of December that this talk was had.
“Mr. Lionberger: I object to that; that is, after all these events.
“Witness: I beg your pardon, there were trades closed after that.
“Q. (By Mr. Lee): G-o ahead. A. And she had become reconciled, and said to him something like this, ‘Well, it is all right, Charlie, we will have enough left anyhow.’ On the 8th and 14th we sold stock, Mr. Lionberger, sold the Pittsburg Plate Class stock.”
This evidence is of course hearsay, and seems to have only been admitted through the generosity of plaintiffs’ attorney. Mr. Francis had never conversed with Mrs. Platt about the matter at all, and the evidence he gave came as pure hearsay from the lips of Charles R. Platt, whose criminal conduct greatly discredits his statement. If he did make the statements attributed to him, I do not know of any theory upon *321■which, they were competent evidence against Mrs. Platt.
When Charles E. Platt gave his deposition and was confronted by all the parties and their attorneys, he denied having related to any member of defendants’ firm any conversation between him and his mother.
“Q. (By Mr. Lee): Did yon ever report to Mr. Kennett that after yon had told yonr mother of the loss of her property, her stock, that she had said it was ■done and it was all over and conld not be undone ? A. Never.
“Q. Yon never said anything like that? A. No, sir.
“Q. Never reported to Mr. Kennett— A. I never reported to Mr. Kennett any interview with my mother.
“Q. Or any other member of the firm? A. No, sir.
“Q. Neither David E. Francis, Jr., nor Perry Francis? A. No, sir.”
If any reliance conld be placed upon, the statements of Charles E. Platt at all, surely his sworn testimony would be worth more than his mere unsworn statement to Mr. Francis.
I am not inclined to give any probative force to "the evidence of Charles E. Platt, except where it is •corroborated by other evidence.
The majority opinion lays much stress upon the •evidence of J. D. P. Francis, as clearly proving an Intention on the part of Mrs. Platt to acquiesce in and ratify the acts of her son in misappropriating her property. If any logical inference can be drawn from the evidence of J. D. Perry Francis as affecting the issues in this case, that inference is that before the sale of the Pittsburgh Plate Class stock the defendants had knowledge that they had aided Charles E. *322Platt in misappropriating Ms mother's stocks and were desirous of knowing’ how sbe felt over tbe transaction and wbat sbe intended to do abont it.
Tbe majority opinion mentions tbe desire of Mrs, Platt to preserve tbe good name of ber son. I am not able to find in tbe record any foundation for sncb a surmise. Tbe fact that tbe Platts employed an attorney as soon as tbe embezzlement was discovered, seems to-indicate that tbe matter of preventing tbe disgrace wMcb would fall upon Charles by tbe exposure of Ms crimes bad not entered tbeir. minds.
Another error, or at least wbat appears to me to be an error, of tbe majority opinion, is tbe fact that it treats tbe receipt and retention by plaintiffs of tbe Cotton Compress stock (worth something over $2500) as a ratification of the unlawful acts of Charles R, Platt.
Tbe receipt of tbe Cotton Compress stock is not pleaded by tbe defendants as a ratification; in face, it is not mentioned in tbeir answer and therefore, does not affect tbe issues in this case.
“To sustain an issue of estoppel, tbe evidence must prove tbe very facts upon which tbe alleged estoppel is based. Tbe estoppel pleaded cannot be supported by evidence tending to show another and different estoppel. Before any of tbe consequences of an estoppel can be claimed, tbe facts constituting it must be found or given in evidence.” [16 Cyc. 811.}
Tbe Cotton Compress stock is not mentioned in any of tbe statements issued to Charles R. Platt by Francis Brother & Company, and seems to have been in some way disconnected with tbe stock be pledged to defendants.
As I view tbe evidence, tbe only thing proven wMcb in any way tends to support tbe defendants' plea of estoppel by ratification, is tbe delay of Lion-berger in demanding tbe return of tbe stocks wrongfully pledged under the power of attorney; and on *323that point I do not think the facts are sufficient to create ratification.
At most, his delay could only affect the Plate Grlass stock, as all other stocks which were sold by defendants had been sold before Lionberger was employed and before Mrs. Platt knew of the embezzlement of the property by her son.
There is nothing in the record which proves that defendants would have changed the course of, their conduct or acted differently if demand had been made by Lionberger on the day he was employed, for the return of the $50,000 worth of stock (approximately) hypothecated through the power of attorney.
Evidently defendants would have held the proceeds of the stock already sold and the Plate Grlass stock and insisted, as they have insisted, that they had obtained through the power of attorney a valid lien on said stocks.
To my mind, it is well-nigh preposterous to contend that Lionberger knowingly accepted the paltry $1833.15 in settlement of a valid claim of more than $50,000 against defendants who are entirely solvent.
The law of ratification is a valuable rule of equity jurisprudence and is often appropriately applied to prevent injustice under the form of law; but to suffer that doctrine to be invoked under the facts in evidence in this case to defeat the just and legal claim of the plaintiffs, is utterly at variance with what I have hitherto understood to be equity.
I have carefully examined the authorities cited by my learned brother in the majority opinion, and while the language quoted lends some support to the conclusions reached, I find that the facts in all the cases cited in the majority opinion are entirely different from those in the case at bar.
“Delay in repudiating an unauthorized act of an agent cannot constitute a ratification if the principal *324during such, time, was ignorant of the facts.” [31 Cyc. 1277.]
“In order to bind the principal as by a ratification, he must have acted with full knowledge of all the material facts.” [19 Cyc. 202.]
The facts relied upon to create a ratification in the case of Garesche v. Levering Investment Company, 146 Mo. 436, quoted by the writer in the opinion filed in Division Two, are more nearly like the facts in this action than any case which has come under his observation. In the Garesche case, the plaintiffs held an estate of remainder in certain real estate of their grandfather; their mother and another party had been named as executors in the will of their grandfather and by that instrument were granted power to sell the real estate for reinvestment. The executors organized a corporation and deeded the real estate to the corporation, on the theory that this would avert the expense of partitioning it among the remaindermen. When the time arrived for the remaindermen to receive the real estate devised to them by their grandfather, they were called together by the surviving executor and given stock in the corporation in proportion to their respective interests in the real estate. The remaindermen received and held their shares of stock for about five months and dividends on same were paid to and accepted by them. The remainder-men, during the time they held the stock, were ignorant of the fact that the will of their grandfather did not authorize the executors to incorporate the estate. They could have found out that fact by going to the probate court and examining the will, the same as Mr. Lionberger or Mrs. Platt could have ascertained the terms of the Platt power of attorney by going to the recorder’s office or by calling on Francis Brother & Company with whom it had been left; but the re-maindermen did not do so until about five months after they had received their corporate stock, when they *325instituted a suit to divest the corporation of title to the real estate and for an accounting. The corporation (defendant in that case) contended that the re-maindermen (plaintiffs in that case) had ratified the placing of their real estate in the corporation by the acceptance of stock in said corporation and by holding said stock and receiving the dividends thereon. This court, however, in a very carefully prepared opinion by Maeshaul, J., held that the remaindermen had not by the above recited acts ratified the unlawful acts of the executors in conveying their real estate to a corporation, and sustained a recovery by the plaintiffs. The recovery in that case was sustained upon the theory that the remaindermen in accepting the corporate stock and the dividends thereon, were not aware of their legal rights (though all the facts concerning the incorporation of the estate were matters of public record), and the fact that they waited several months to ascertain their rights, was not such an acquiescence or ratification of the wrongful acts of the executors as would bar them from maintaining their action.
Defendants’ learned attorneys, in their last brief filed in this case, admit that the law is correctly announced in the G-aresche case.
For the reasons before recited, I respectfully dissent from the majority opinion filed in this case. Kennish, J., concurs in the views expressed herein.