ON MOTION FOR REHEARING. In motion for a rehearing the defendant, the appellant, makes claim that in the opinion handed down by us that all the questions presented have not been decided. This case presents grave questions of public and private interest and with a desire to fulfill our whole duty touching all issues presented, we conclude to hand down this opinion on rehearing.
The record herein is somewhat voluminous and in addition to an original brief of 104 pages, wherein five assignments of error are made, the defendant has filed, on motion for rehearing, a brief of forty pages, wherein there is made presentation under eight suggestions in support of its motion.
In the first suggestion it is claimed that this court in its opinion has completely overlooked the question of "ratification."
An examination of the record discloses that the defendant in its answer filed herein makes no defense based upon "ratification," no instruction on the issue of ratification was asked or given and the defendant in its motions for a new trial and in arrest raises no question of ratification.
The question of ratification was, however, presented in defendant's first brief filed herein. The issue was presented in connection with defendant's assignment of claimed error in refusing defendant's offer of demurrer. *Page 1048
Under the above presentation, this court assumed that, without objection, ratification had been considered by all parties as an issue of fact. Concluding as we did that an issue had been made for the jury and that we were bound by facts as found by the jury that were consistent with credible testimony, we, in the light of the facts above stated, did not, in our opinion, take up and make detailed discussion of the legal phases of the term "ratification."
Out of respect to that laudable insistency, that is characteristic of the legal profession and which leads to long judicial opinions, we yield in the spirit of him, who said, "Lead on McDuff . . ."
As we gather from Corpus Juris, volume 52, pages 1144 and 1145 and notations there found, we conclude, that "ratification implies assent to acts done by another that inure to the other's benefit. Accepting the benefit and assenting to the act constitutes such a meeting of minds as to fulfill the elements of a contract and thereby is binding upon the one receiving the benefit.
Having concluded that there was evidence that supported the findings of fact by the jury, we are bound by said findings of fact. Under the instructions the jury in order to find for the plaintiff had to find, as a matter of fact, that the injunction suit filed by defendant "was to delay and hinder the sale of bonds and the final consummation of the sale of plaintiff's real estate. Further, that said suit "was not filed in good faith." Further, "that an appeal was threatened for the purpose of harassing, annoying and vexing the plaintiff and of compelling the plaintiff to pay to defendant money to induce defendants to dismiss said bill in equity."
Being bound by the above finding of facts, we must conclude that defendants did no act in such relationship that can be concluded as done for plaintiff's benefit. That being so, there was nothing to ratify.
There is another phase, however, to the question of ratification. If, with all the facts in mind, all restraints removed, all elements of duress eliminated, the plaintiff herein of her own volition paid the money to defendant, then, such a condition existing, upon principles like unto ratification, the plaintiff would be barred from recovery. The question of voluntary payment is presented by the defendant under a separate head and we will proceed to that head for further consideration and comment.
Defendant's second suggestion is that, "money voluntarily paid out cannot be recovered."
The defendant bases its contention on the assertion that the money in controversy was voluntarily paid to it by the plaintiff. The defendant in support of its contention cites and quotes from Wilkins v. Look, 246 S.W. 1000, as follows: *Page 1049
"The rule is firmly established that courts will not permit a man to recover money back which he, with knowledge of the facts, has voluntarily paid out. Our Supreme Court, in the case of American Brewing Co. v. St. Louis, 187 Mo. 367, l.c. 376, 86 S.W. 129, 131 (2 Ann. Cas. 821), with reference to the question under discussion here, held that — `The rule stated has been uniformly followed in this State with reference to all kind of payments, including taxes, licenses, and claims and the doctrine is firmly established that payments made with a full knowledge of all the facts constitute voluntary payments and cannot be recovered and that mistake or ignorance of law gives no right to recover.' [Walker v. St. Louis, 20 Mo. 143, 61 Am. Dec. 598; Claflin v. McDonough, 33 Mo. 412, 84 Am. Dec. 54; Couch v. Kan. City,127 Mo. 436, 30 S.W. 117; Teasdale v. Stoller, 133 Mo. 645, 34 S.W. 873, 54 Am. St. Rep. 703; Douglas v. Kan. City, 147 Mo. l.c. 437, 48 S.W. 851.]"
To a consideration of the above well-stated fundamental principles, we must have the facts, as found by the jury in the case at bar, in mind to a consideration of the application of the same to the facts herein.
The jury has found that defendant's injunction suit was brought in bad faith and with a purpose of compelling payment of money from plaintiff to defendant. This court in its opinion handed down herein has declared the whole transaction culminating in the payment of the money to defendant as void from principles of public policy.
Under the conditions, found existing, plaintiff had been caused to make a deed to her property conveying same to Jackson County, which county was not a party to the agreement. This deed was caused to be deposited with the Kansas City Title Trust Company as trustee.
The deed so deposited was pursuant to an agreement, which agreement provided that, "The said Title Company is hereby givenfull and plenary power to, as is instructed, to disburse the money or funds it may receive on account of each owner as the purchase price of his or her property." (Italics ours.)
The instruction for disbursement provided for the payment of three and one-half per cent of the purchase price to defendant. The agreement above was found by the jury to have been signed by reason of coercion on plaintiff that constituted duress.
The record shows that, as between the trustee and defendant, disbursement of three and one-half per cent of the proceeds from plaintiff's property was paid to the defendant.
The defendant now contends that the payment made to it by the trustee in exercising its "full and plenary power," was a voluntary payment on the part of plaintiff. *Page 1050
In support of its theory the defendant presents that the payment to it was under date of July 6, 1932, and that prior to said date to-wit, on May 24, 1932, its injunction suit had been finally disposed of and that it cannot be asserted that she was then under duress. The defendant in its brief says, "all possible duress was gone. She had the money in her pocket." By way of passing thought, the above language might imply that what "was gone" had former possible existence.
If the defendant in the above expression intends to say that the full price of her real estate was ever in plaintiff's pocket, then we conclude that the same is not borne out by the record. We conclude from the record that the money was paid into the hands of the trustee in the written agreement which this court has adjudicated as void and further, the three and one-half per cent of the purchase price of plaintiff's real estate was disbursed direct to defendant with no further delegation than that contained in said agreement. Herein lies a marked distinction between the case at bar and the case above quoted from.
To our mind, the question of ratification and of voluntary action goes to the act that put the control of plaintiff's property and the disbursement of the proceeds thereof beyond her control. We conclude that the payment made by the Title Trust Company to the defendant cannot be imputed to plaintiff as her voluntary act nor as a ratification of any act done or suffered by defendant.
As to the money being paid over after the suit was dismissed, we conclude from the showing of the record that said suit was not dismissed and its coercive influences removed until it had worked the purpose of such impounding of the money in the hands of the title company as would and did assure its payment from the title company to the defendant.
The third suggestion made by the defendant is as to "admission of incompetent evidence."
The question raised in this motion for new trial is as to plaintiff's witnesses Neel and Huselton.
In the original brief the defendant made assignment as to these witnesses as follows:
"The trial court erred in admitting the following evidence:
"(a) Testimony of Mr. Neel (Rec., pp. 75, 76) and of Mr. Huselton (Rec., pp. 77-84) and of Mrs. White (Rec., pp. 136, 137) concerning statements and conversations by third persons, not in the presence of defendants; such statements being hearsay and not binding upon defendants."
The nature of the objection was not otherwise indicated than as above. *Page 1051
In accordance to our practice we turn to pages cited and review the evidence and note if objection was made and exception saved. No objection or exception was shown on the pages of the record cited.
In the motion for rehearing there are made citations to other pages of the record from which we conclude objections and exceptions were made and saved. While defendants' specification as found in its brief might justify a refusal to review, we are not moved by such a spirit.
As to the testimony of both Neel and Huselton, the same was concerning matters discussed in meetings pending negotiations that lead to the agreement that was afterwards signed, at which meetings the plaintiff was present. We conclude, that the testimony was competent as going to the question of plaintiff's state of mind.
Defendants' fourth suggestion is as to plaintiff's instruction number one.
Under defendants' assignment of error and the raising of the point in motion for new trial, this instruction is presented for review. In making a review we did so in the light of the testimony and in light of arguments presented and we conclude that the instruction was supported by and based upon competent evidence. The defendant's assignment of errors are set forth in full in our opinion heretofore handed down. As to defendant's assignment of errors number one, (b), (c) and (d), we conclude that all that is necessary to say was said in the opinion handed down, with but this addition, to-wit: The mere statement of abstract propositions of law with citations following does not comply with the rule requiring that the brief distinctly allege errors committed by the trial court. [Automatic Sprinkler Co. of America v. Stephens, 267 S.W. 888, 306 Mo. 518; Bradbury v. Crites; 281 S.W. 725, 312 Mo. 694.]
The defendant's suggestion five is: "The evidence does not support the claim of duress." We conclude that we fully covered that subject in our opinion handed down.
The defendant's sixth suggestion is, to-wit, "public policy." As to this subject we discussed the same at length in our written opinion handed down. In addition to what was therein said, we will here quote the defendant's own language in dismissing its motion for a new trial in the injunction suit, to-wit: "Further, this plaintiff announces its intention irrevocably to not proceed further in the prosecution of this cause, and in considerationof the public interest and other considerations, receipt of which are hereby acknowledged, waive any right to appeal from any order issued herein and waive any right it has to sue out a writ of error in the above entitled cause." (Italics ours.) The defendant recognized that public interests were involved. *Page 1052
Under suggestion number seven, exception to plaintiff's instruction number three is presented.
In the original brief claim of error was as to Instruction two. Instruction two was refused. We recognized that number three was intended and proceeded to discuss as to same.
We have given careful consideration to the opinion in the Keet-Roundtree Dry Goods Co. v. Hodges, 175 Mo. App. 484. The instruction therein tells the jury that they cannot find against an interpleader unless they find that the sale of goods was made in fraud. The instruction is declared error because it fails to define the term fraud as applied to the transaction involved. We conclude that said case is not in point herein.
The defendant makes citation of several like cases wherein the question involved is failure to define terms in instructions directing or permitting the jury to make findings of fact. The instruction in the case at bar but purports to define the term "duress." We conclude that it was proper to give such instruction and also conclude that as a definition the instruction is not in error.
The defendant's eighth suggestion is, to-wit: "Protection under the constitution." A wide field for Platonic reasoning and Didactic discussion is presented which if yielded to would lead to a thesis rather than a judicial opinion.
The defendant, in its assignment of errors, points and authorities, does not raise a constitutional question. However, even had it been raised we can, of course, only consider defendant's suggestion from the standpoint of application.
The defendant's Instruction H told the jury that defendant was within its legal rights in bringing its injunction suit.
Defendant's Instruction C-1 directs the jury as to its duty to determine all matters of fact from the evidence.
From a study of the record, and considering defendant's suggestion from the standpoint of application alone, we conclude there is nothing shown that would justify this court to hold that defendant has been deprived of protection under the Constitution.
We conclude duress may be manifested by exercising the rights, that the Constitution gives, in a wrongful way and for a wrongful purpose and that due process of law is susceptible of being used for an unlawful purpose.
Consideration of question of public interest involved has impelled to more lengthy discussion than probably the assignment of errors would require. As in all hotly contested suits the case at bar is not free from remarks and acts that it would have been better if not made or done. However, from a careful study of the whole record, we concluded that there was a fair trial and find no error of such prejudicial nature as presents reversible error.
The motion for rehearing is denied. All concur. *Page 1053