Kennedy v. Klein

Hall, J. The errors complained of in this court, for which a reversal of the judgment herein is asked, are, so far as it is necessary for us to state, in the refusal by the trial court of instructions numbered one, two, and three, asked by the plaintiff. I. Instruction numbered one, submitted to the jury a question of estoppel in pais. No such issue was made' by the pleadings, and for that reason the instruction was properly refused. Noble v. Blount, 77 Mo. 242; II. Instruction numbered two submitted to the jury a question of ratification by the defendant of an unauthorized act done by his agent. No such issue was made by the .pleadings, and for that reason that, instruction was refused. Noble v. Blount, supra ; Wade v. Hardy, 75 Mo. 399. III. Instruction numbered three ignored the question whether the defendant accepted the substituted lands, tinder an agreement by Kennedy to pay the difference in value, if any. This question, under the pleadings and [20] evidence, was the vital issue in the case. That instruction was properly refused. The instructions, taken as a whole, fairly presented the questions raised by the pleadings to the jury. The judgment of the circuit court is affirmed. All concur.