* Headnotes 1. Appeal and Error, 3 C.J., Section 649; Courts, 15 C.J., Section 164; Mandamus, 38 C.J., Section 745; 2. Estoppel, 21 C.J., Section 136; 3. District and Prosecuting Attorneys, 18 C.J., Section 90 (Anno); 4. District and Prosecuting Attorneys, 18 C.J., Section 90 (Anno). Action asking for a writ of mandamus to compel the judges of the county court of Greene county to issue a warrant to pay relator an amount alleged to be due and unpaid as salary for services as Second Assistant Prosecuting Attorney of Greene county. The trial court found against relator and he appealed.
The appeal was granted to this court and we certified it to the Supreme Court on the ground that Greene *Page 489 county was the real party in interest and that fact would vest jurisdiction of the appeal in the Supreme Court. The case was there submitted in Division No. 1, and an opinion written by Commissioner Lindsey in which he held that the judgment should be affirmed. His opinion was concurred in by two judges but the other two judges of that division dissented and the case went to the court en banc. The court en banc, by a majority opinion, held that jurisdiction of the appeal was in this court and recertified the case here without an expression of opinion on the merits. [State to the use Nee v. Gorsuch et al., 260 S.W. 455.]
The pertinent facts in this case are admitted and are brief. Relator was duly appointed Second Assistant Prosecuting Attorney of Greene county and served as such from January 21, 1917, to August 18, 1918, when he was inducted into the U.S. Army. During the time he served, he was paid and received without protest or complaint a salary of $100 per month or $1200 per year. The county court by order of record on June 26, 1913, had fixed the salary of the First Assistant Prosecuting Attorney at $1500 per year, and the salary of the Second Assistant at $1200 per year. Later, and before relator was appointed Second Assistant, another order was made increasing the salary of the First Assistant to $1800 per year and he was paid that amount during the time relator served as Second Assistant. While relator served he was paid at the rate of $1200 per year and during all that time he and the judges of the county court all thought that the order of the county court of June 26, 1913, which fixed the salary of the Second Assistant at $1200 per year was valid and binding and payments were made and received on that basis and in that belief. After relator's term had expired, it came to his knowledge for the first time that by an act of the Legislature in 1911, Acts 1911, p. 90, now section 767, Revised Statutes 1919, the State law provided that the second Assistant Prosecuting Attorney should receive the same salary as *Page 490 that allowed the first assistant. Relator then demanded payment of a sum equaling the difference between $1200 per year and $1800 per year for the time he had served. Payment was refused by the county court and this action followed.
Respondents make the point in this court that the proceeding by mandamus cannot be sustained because the relator has an adequate remedy at law. That question was not raised in the trial court and we are of the opinion that the form of action when jurisdiction to pass on the merits of the controversy is not prohibited, may be waived and that respondents by not raising the question in the trial court did not waive it. A party who wishes to take advantage of the fact that his adversary is pursuing the wrong remedy in a given case must raise that question at the trial in the lower court and take the judgment of that court on that question. If that is not done and the question is raised for the first time in the motion for new trial or in the appellate court, it comes too late. [Whetstone v. Shaw, 70 Mo. 575; Estes v. Frye, 94 Mo. 266, 271, 6 S.W. 660; Kostuba v. Miller,137 Mo. 161, 171, 38 S.W. 946; Crocker v. Barteau, 212 Mo. 359, 371-2, 110 S.W. 1062.]
On the merits of the case it is conceded that the order of the county court fixing the salary of the Second Assistant Prosecuting Attorney at $1200 per year was a nullity because the salary of that official was fixed by statute and the county court was powerless to change it. The county court had the power to fix the salary of the First Assistant. This the court did and at the time relator was appointed and while he served as Second Assistant the salary of the First Assistant had been fixed by the county court at $1800 per year and that sum was paid. When that was done the statute, section 767, Revised Statutes 1919, fixed the salary of the Second Assistant at the same amount. All this is conceded but it is contended by respondents that relator is estopped from forcing collection of the balance on a basis $1800 per year *Page 491 because he accepted $1200 per year as full payment and understood when he was appointed and while rendering the service that $1200 per year was all that the county owed him. It is conceded on both sides that neither the relator nor the respondents knew until after relator's services were ended that there was a provision of the law by which the salary of the Second Assistant Prosecuting Attorney in a county in the class to which Greene county belonged was fixed at the same amount as that paid the First Assistant. It is said that ignorance of the law excuses no one nor can it be used as a basis on which to rest a cause of action. While that is true, it is also true that ignorance of the law cannot be used as a basis on which to rest a defense. The rule applies with equal force to all parties and neither relator nor respondents can be allowed to profit by the fact that they did not know the law when relator's services were rendered and paid for at a less sum that the law provided he should receive. Since ignorance of the law excuses on one, we must determine the merits of this controversy exactly as we would determine it had all parties, in fact, known the law when relator's services were rendered and he paid therefor. Proceeding from that premise we do not think relator is estopped in this case. One of the necessary elements of estoppel is that, in a legal sense, some injury will result to the other party unless the party asserting the claim or right shall be prevented from enforcing it. [Acton v. Dooley, 74 Mo. 63, 67; Blodgett v. Perry, 97 Mo. 262, 272, 10 S.W. 891; State ex inf. Kilham v. Consolidated School District, 272 Mo. 458, 473; Grafeman Dairy Co. v. Northwestern Bank, 290 Mo. 311, 335,235 S.W. 435; Vette v. Hackman, 292 Mo. 138, 147, 237 S.W. 802.]
We cannot see that any injury will result to respondents or to Greene county by permitting relator to now collect what should have been paid him when his services were rendered to the county. It will cost no more to pay it now than it would have cost to have paid it then. It *Page 492 has been suggested that had the judges of the county court known law and had relator demanded the larger amount at the time, the county court could have reduced the salary of the First Assistant, in which case the Second Assistant could only have collected the same amount and the interests of the county could have been protected in that way. That argument can have force upon but one theory and that is that the Prosecuting Attorney and his assistants are the legal advisers of the judges of the county court and that it was the duty of relator to have known the law and to have advised the county court of its provisions. We do not understand that the prosecuting attorney is required to advise the county court unless asked to do so. If there were an an issue of fraud or overreaching in this case and any facts to show that in equity and good conscience the relator should have given information of that character to the respondents, a different question would be presented, but there is nothing of that kind in this case. Aside from all of that, we do not think the mere fact that it would have been possible for the county court to have lessened relator's salary by reducing the salary of the First Assistant can be given any consideration here. The county court had no voice in this appointment of a Second Assistant Prosecuting Attorney. By the terms of the statute, section 765, Revised Statutes 1919, the appointment of a Second Assistant is made by the prosecuting attorney when he and the judge of the court having jurisdiction in criminal cases in that county shall together determine that such appointment is necessary. Neither does the county court have any voice in fixing his salary. The statute fixes that. They do have a voice in determining whether it is necessary to appoint a first assistant and when one is appointed they fix his salary. They would, of course, be presumed to fix his salary at a sum that would reasonably compensate him for the services to be rendered. Should the circuit Judge and the prosecuting attorney determine that the work of his office required *Page 493 the addition of a second assistant, and one should be appointed, we cannot assume that the fact of the appointment of a second assistant would render the services of the first assistant of less value to the county and make a reduction in his salary necessary or justifiable. To work an estoppel there should be a showing that injury would in fact result if estoppel were not applied. We do not think that a mere showing that it would have been possible for a party to have pursued a different course is sufficient. In fact, it appears in this case that after the existence of the law referred to was discovered, the then second assistant was paid on the basis of $1800 per year and no reduction was made in the salary of the first assistant. We do not think that under the facts in this case the relator is estopped.
It is further contended that if relator is not estopped he at least waived his right to collect the additional amount and recovery should be refused upon that ground. We have been cited to a great number of cases, which, it is contended, hold that both estoppel and waiver should be applied to defeat recovery in this case. We have examined all them but find none that we think are controlling in this case. We think the question of waiver, like the question of estoppel, must be determined without any reference to the ignorance of the parties as to the provisions of the law which fixed the salary of the second assistant the same as that fixed by the county court for the first assistant. To do otherwise would permit one party or the other to profit by his ignorance of the law and that cannot be done. We then have the following set of facts. Relator is serving as Second Assistant Prosecuting Attorney and is entitled to receive $1800 per year or $150 per month. At the end of the first month, the county owes him $150. The judges pay him $100. What about the balance of $50? Is the county relieved from liability for that balance? If so, upon what theory? If relieved it can be upon but one theory and that is that acceptance of a part of the debt then due as payment in *Page 494 full discharges the entire debt. Had the parties known of the existence of the statute at that time and had discussed the matter and relator and respondents had then and there agreed that by the payment of $100 the debt of $150 should be discharged in full, it would not have paid it. Relator could have sued the next day and recovered the balance of $50 for there would have been no consideration for his agreement to take less than the amount due as payment in full and without such a consideration, he would not be bound. [Barrett v. Kern, 141 Mo. App. 5, 25, 121 S.W. 774; Bartley v. Pictorial Review Co., 188 Mo. App. 639, 644, 176 S.W. 489; Wetmore v. Crouch, 150 Mo. 671, 683, 51 S.W. 738; Scott v. Parkview Realty Improvement Co., 241 Mo. 112, 134, 145 S.W. 48.]
If he had been paid nothing until the end of his term and had then been paid in a lump sum at the rate of $100 per month for the entire time, the rule would have been the same. No reason can be assigned why the rule should be changed by reason of the fact that payments were made and accepted in the same way each month as the time passed. Each payment was less than the amount due and accepted without any consideration therefor as payment in full and for that reason the relator was not bound. The fact that all parties thought the amount paid was all that was due, standing alone, and the fact that this belief arose from ignorance of the law could make no difference as to their legal rights. To hold otherwise would result in punishing a man solely because of his lack of knowledge of the law and we do not think that can be done. Ignorance of the law neither excuses nor condemns. The legal rights of parties who are in fact ignorant of the law's provisions are to be determined and settled just as they would be if the parties knew the law, and had the parties in this case in fact known of the provisions of the law and while possessing that knowledge had done just what they did do, we do not think the doctrine of either estoppel or waiver could have been invoked in this case. *Page 495
The judgment will be reversed and the cause remanded with directions to enter judgment making the writ permanent. Bradley,J., concurs; Bailey, J., not sitting.