ON REHEARING. The chief contention of plaintiffs in their motion for rehearing and in their argument is that as defendant's answer was a general denial and ratification was not pleaded, defendant is precluded from urging that point at this time. Plaintiffs cite many cases in support of the general rule that, unless pleaded, ratification is not in the case.
A review of the record shows the case was tried on an agreed statement of facts, consisting almost wholly of communications between the parties and one Owens, the selling agent. This evidence tends to show ratification of the deal as finally consummated, and it was admitted as per stipulation, the record shows, and was not challenged at the trial. Had it been challenged, defendant would have been entitled to amend its answer to cover the point presented by the evidence to correspond to the facts shown. [Ehrlich v. Mittelberg, 299 Mo. 284,252 S.W. 671.] The rule is well established in this respect that an appellate court will treat the answer as having been properly amended. This question would seem to have been determined in the Ehrlich case at page 301. We think the point requires no further discussion. [See, also, Hall v. Hein (Mo. App.), 263 S.W. 514.] This ruling is held not to be in conflict with any of the cases cited by plaintiffs.
Complaint is made that this court in the original opinion found that an escrow agreement existed and that it was breached by defendant, and then sustains the judgment for defendant on the theory that plaintiffs ratified the breach of the escrow agreement. It is insisted that such decisions is in direct contradiction of the written pleadings, and that before there could be a ratification of a breach of the escrow agreement, such agreement must have existed and this defendant's answer denies.
The petition pleads an escrow agreement and such agreement is shown by the stipulated facts, to-wit, defendant's letter of February 6, 1924, to plaintiff, as follows:
"We received the deed referred to in your letter and are holding the same in escrow according to instructions which accompanied same."
The answer was a general denial. In Ledbetter v. Ledbetter,88 Mo. 60, 61, 62, it is said:
"Ordinarily, a statement of new facts showing a nonliability, impliedly at lease admits a liability, but for such new facts. Hence, *Page 8 it is often said an answer setting up new matter by way of defense should confess and avoid the plaintiff's cause of action. [State to use, etc., v. Williams, 48 Mo. 212; 1 Chitty Plead. (16 Am. Ed.) 551.] But the confession is not necessarily an absolute one. It need not be made in terms. It is often only implied from the nature of the defense, or assumed for the purpose of the particular defense. [Bliss Code Pleadings, sec. 341.] Traverses and answers in avoidance may go together where not inconsistent. In Hopper v. Hopper, 11 Paige, 46, it is said the defendant `cannot set up two defenses which are inconsistent with each other that if the matters constituting one defense are truly stated, the matters upon which the other defense is attempted to be based must necessarily be untrue in point of fact. But the defendant may deny the allegations upon which the plaintiff's title to relief is founded, and may, at the same time, set up in his answer any other matters not wholly inconsistent with such denial.' In Nelson v. Brodhack, 44 Mo. 599, in speaking of consistent defenses, BLISS, J., says: `The right will be secured if the consistency required be one of fact merely, and if the two defenses are held to be inconsistent only when the proof of one necessarily disproves the other.' [See, also, McAdow v. Ross et al., 53 Mo. 202; State ex rel. Davis v. Rogers, 79 Mo. 286.] The defendant, therefore, in an action of ejectment, may plead by way of a general denial, and rely upon that as a complete defense. He may also, in the same answer, plead an equitable defense and rely upon that as an independent defense."
The petition and proof fully justified the court in holding there was such an escrow agreement; that, under the stipulation, it was breached by defendant, and, under the rule enunciated above, there was a ratification by plaintiffs and that this was one of the theories upon which the case was tried and determined in the court below.
What we have said covers all the points raised in plaintiffs' brief and argument on rehearing. We adhere to our former opinion in the case, affirming the judgment.