"If no one has been misled to his hurt, if no injury has arisen from the conduct, declarations, or silence of a party, he will not be estopped from contradicting them, even though they would be conclusive against his right if uncontradicted. * * * But there is no such thing as estoppel in pais for neglecting to speak or act when the party did not know the facts which, if known, would have made it his duty to speak or act.' That case is instructive on the very point involved in this. In 1877 Mrs. Grubb was the owner of an interest in the tract of land involved in the suit, and joined with her husband in attempting to convey it to the plaintiffs, receiving full consideration therefor. By mistake in the description of the land the conveyance failed, and it was held by this 51 S. W. 822, 73 Am. St. Rep. 448, that it could not be corrected in equity. After the death of her husband it was asserted that Mrs. Grubb, while a widow, had received personal property in satisfaction of her claim for this same land, and was estopped from asserting her title. In disposing of this point adversely to the claim, this court (183 Mo. 549, 82 S. W. 125) said: "Mrs. Grubb's title to the undivided oneter was of record, and directly in the chain of fourth in the northwest of the southeast quartitle of defendants from their father. By the slightest diligence they could have ascertained de-if Mrs. Grubb had conveyed her interest. The search to that extent would have disclosed the mistake which they claim was made, and before dividing the land they could have ascer tained her rights. We have already ruled that such alleged mistakes because Mrs. Grubb was neither a court of law nor equity could correct at that time a married woman and her estate a legal one and not her separate estate." [7] Equitable estoppel, or estoppel in pais, is that condition in which justice forbids that one speak the truth in his own behalf. The law has adopted the latter term from the old French estoupail, meaning a bung; and it indicates that in such a case one's mouth is plugged against the flow of truth. A healthy instinct immediately suggests that it cannot be under all circumstances that one is deprived of the use of so clean a weapon, even in defense of his own. We do not have to go to the special books of the law for information on this point, for it is, as it should be, the learning of all. Web-court, in McReynolds v. Grubb, 150 Mo. 352, ster, in his dictionary, defines "estoppel in pais" or "equitable estoppel" as that "which, when a party by his conduct or language has caused another reasonably to believe in the existence of a certain state of things, and (having a legal right so to do) to act upon the belief, precludes him from averring or setting up, to the prejudice of the latter, that a different state of things existed at the time in question." The act or conduct invoked as an estoppel may be the simple failure of the one against whom it is invoked to speak when it is his duty to do so; but, whether his conduct be the result of negligence or sign, it may be corrected before the party invoking it has acted upon it to his prejudice. These elements of definition have been incorporated in all the law dictionaries, where they may be found under the heading of estoppel. Nor do the text-books overlook them. Bigelow on Estoppel (3d Ed.) 484. And the wealth of adjudication to the same | effect in this court is, from the standpoint of right and justice, extremely gratifying. Taylor v. Zepp, 14 Mo. 482, 55 Am. Dec. 113; Newman v. Hook, 37 Mo. 207, 90 Am. Dec. 378; Bales v. Perry, 51 Mo. 449, 453; Austin v. Loring, 63 Mo. 19; Acton v. Dooley, 74 Mo. 63, 69; Blodgett v. Perry, 97 Mo. 263, 273, 10 S. W. 891, 10 Am. St. Rep. 307; Burke v. Adams, 80 Mo. 504, 514, 50 Am. Rep. 510; Monks v, Belden, 80 Mo. 639, 642; Gentry v. Gentry, 122 Mo. 202, 221, 26 S. W. 1090; Bank v. Ragsdale, 171 Mo. 168, 185, 71 S. W. 178; Spence v. Renfro, 179 Mo. 417, 422, 78 S. W. 597; Harrison v. McReynolds, 183 Mo. 533, 547, et seq., 82 S. W. 120; Keeney v. McVoy, 206 Mo. 42, 57, et seq., 103 S. W. 946. In all these cases, except, perhaps, the first two, in which the point was not involved, it is held that another element must enter into estoppel. In the case last cited it was said by Judge Lamm for the court that the act relied on must have been made with knowl-ly remain silent. Spence v. Renfro, supra; edge, actual or virtual, of the facts. In Harrison v. McReynolds, supra, Judge Gantt, in applying the same principle to a case of ignorance of her legal rights on the part of the one against whom estoppel was alleged, quoting from Acton v. Dooley, supra, said: This recognizes another well-established rule applicable to such cases. The party invoking the estoppel must himself be ignorant of the title of the other. In Austin v. Loring, supra, this court expressed the same rule as follows: "If no one has been misled to his damage, if no injury has arisen from the conduct, declarations, or silence of a party, he will not be estopped from contradicting them, and a party will not be allowed to avail himself of an estoppel when he knew or had the same means of knowledge as the other party." We had also expressed the same idea in Bales v. Perry, 51 Mo., supra, loc. cit. 453, as follows: "If, therefore, the truth be known to both edge, there can be no estoppel." parties, or if they have equal means of knowl And again in Spence v. Renfro, 179 Mo. 417, 422, 78 S. W. 597, 598, we said: "So if the facts be known by both parties, or if they have equal means of ascertaining them, there can be no estoppel." If one's deed be on record, he may safe Bales v. Perry, supra; Harrison v. McReynolds, supra. [8] Although the defendants pleaded these matters as an estoppel in equity, they now say that the receipt of this distribution from their mother's trustee was a ratification or their grandfather had written the will which made this small provision for them. They established their home at Shelburn, Ind., where the family continued to reside up to the death of the mother in 1903, when, as we have pointed out, the property in question became vested in them under their grandfather's will. There is nothing in the record to indicate that either of them had ever seen their aunt's husband, Mr. Pearre, who sold the land in question, excepting on two occasions when he came West on his way to Missouri to look after these lands. He was not a meniber of the family when they left Pennsylvania. His talk with the De Lashmutts at the time of these visits is a matter of dispute. He says he told them that John E. Sifford had sold some of the Missouri lands, and that he himself intended to sell the remainder; while they say he told them that Sifford had thrown away some of them, and that he was going to recover them. They all insist that they never knew nor heard that he had ever sold or attempted to sell any of the lands in Missouri until after the final distribution. Dr. De Lashmutt testifies that prior to any visit of Mr. Pearre to his home he had written to "the bondsmen [meaning no doubt, the bondsmen of the executor], forbidding them selling the land or lands of John Sifford, deceased, away from the children." confirmation of the void sale by Pearre. | left Pennsylvania with their father and Mr. Bigelow, in his careful treatise to which mother, Dr. De Lashmutt and wife, before we have already had occasion to refer (page 493), says that the most acquiescence or ratification can do "is to supply an element necessary to the estoppel, and otherwise wanting, as, e. g., knowledge of the facts at the time of making the representation." This is a way of saying that, while "estoppel by conduct" may result from negligence in that concerning which we owe care to others, the first element in the making of contracts is the meeting of the minds of the parties. Whether they come into existence by adoption, acquiescence, or ratification, or by the more ordinary process of original execution, there must exist the ground of knowledge on which these may meet. To this ground each is held to contribute those matters peculiarly within his own knowledge. For example, should a man steal my horse, and come afterwards and sell it to me for cash, being able to do so because, perhaps I had never seen the animal, or had I seen him, could not recognize him, ought the law for that reason charge me with acquiescence in the theft? Would it be too much to say that in holding that I was estopped by acquiescence from denying the title of my vendor, the law would reduce itself to the position of an accomplice with the wrongdoer? Another example will recommend itself to the personal experience of every country lawyer who practiced in Missouri when its rural counties consisted largely of wild lands, owned by nonresidents, many of whom were poor, perhaps soldiers of the Mexican War and their widows and children. In those days enterprising people kept agents in these counties whose names were household words, as bidders at tax sales, and other agents in the field to look up and compromise with owners over whose titles they had spread the shadow of their purchases. Upon the enactment of the Revenue Law of 1877 the payment of the taxes was no longer a defense against the sale. When at the instance of the purchaser the owner was notified of the judgment and sale, and that the surplus was awaiting him in the hands of the court, many of these who could not afford to obtain copies of the record and legal advice, and relied upon the statements of those whose duty it was to inform | them of the true facts, have been constrained to save from the wreck the little surplus. Is it right that upon ascertaining that they had been deceived, and that the judgment had been a nullity, they should not be permitted to return the money to those who had deceived them, who had taken it knowing and concealing the facts, and retain their own? This question, it seems to us, answers itself; and it is also answered by a line of authorities which are a credit to our jurisprudence. 5. Applying these principles to the case in hand: The plaintiffs, then little children, On May 13, 1904, each of the plaintiffs, on receipt of the funds expressed in it, gave Mrs. Pearre a receipt in the following form: "Received of Mrs. Anna J. Pearre, trustee, one thousand nineteen 20/100 dollars, first installment of my interest in the estate of my grandfather, Jno. Sifford, deceased, inherited through my mother, Cleanthea De Lashmutt." It is even claimed that up to that time these parties had ever seen any letter, deed, or other writing referring to the sale of any of these lands by Pearre. On April 26, 1904, Mr. Pearre wrote J. S. De Lashmutt among other things as follows: "I wrote you yesterday enclosing a quitclaim deed from Mo. This land was sold some twenty years since, and the money paid to us for itthe letter will explain. When this paper arrives, please execute it with Mrs. De Lashmutt and return-You will place me under obligation." This deed was to one Knowles, and covered a tract of the St. Clair county land that had been sold to him by John E. Sifford as trustee. The quitclaim was held by J. S. De Lashmutt for investigation, which so irritated Mr. Pearre that he wrote that if his statement was not worth believing, or if they had to defend their interests from him, he did not care to continue his correspondence with them, and referred them to J. B. Egger at Appleton City, Mo. This reticence and extreme sensitiveness to inquiry does not argue strongly in favor of the proposition that he was ready and willing to explain when called upon. The young men took him at his word, came to St. Clair county, investigated the STROTHER v. KANSAS CITY MILLING CO. (No. 16717.) (Supreme Court of Missouri, Division No. 1. ΤΟ SERVANT SUPERINTENDENT-FELLOW or Where decedent, a millwright, was dered by his superintendent, who had exclusive supervision of the acts of decedent and others employed in defendant's mill, to assist in putting on a heavy belt, and was injured by the superintendent's alleged negligence in failing to warn him when the belt had been so placed tion, decedent and the superintendent were not that it was affected by the live pulley in mofellow servants. matter, and without any unreasonable delay, as it seems to us, brought this suit. They find, as they say in their petition, that the purchase price paid for this land was included in the distribution of the Sifford estate, 1. MASTER AND SERVANT ( 197*)-INJURIES and ask for an accounting in which their share shall be charged against them. There is nothing in the papers or correspondence attending the distribution of the De Lashmutt fund which indicates notice to the distributees that any part of it resulted from a sale of any part of these lands by Pearre, and the testimony of the parties who know preponderates greatly against that conclusion. That the defendants who answer and claim the land knew the character of the sale and conveyance under which they claim, and which appears fully of record, is not only a fact, but a legal conclusion, which the law will not permit them to deny, and nothing can be more reasonable and just than the rule which denies them the right to shift the [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 489, 490; Dec. Dig. § 197.*] 2. NEW TRIAL (§ 39*)-GROUNDS-ABSTRACT INSTRUCTIONS. Where decedent was injured by the alleged negligence of defendant's superintendent whom he was assisting to adjust belt, and both plaintiff and defendant introduced evidence to show that one of the superintendent's hands was disabled, the fact that the crippled hand was not claimed to have had anything to do with the accident under the theory of either any causal way, did not make the giving of party, and was not connected with the accident an instruction for defendant, that there was no evidence that the condition of the hand directly jury, and the jury's finding on that issue must caused or contributed to cause plaintiff's inbe for defendant, ground for sustaining an order granting plaintiff a new trial. burden of their own carelessness to the shoul- There is nothing in Hector v. Mann, 225 [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 57-61; Dec. Dig. § 39.*] Where, in an action for injuries to decedent by the alleged negligence of his superintendent in failing to warn him when a belt they were setting began to catch the pulley, whether the warning was, in fact, given was the main issue in the case, an instruction directing a verdict for defendant, though it was negthe-ligent, and though such negligence was the direct cause of plaintiff's injury, provided the jury found that defendant's negligence consisted "solely" in the superintendent's choice of the "method of place performing such work," and also found that both defendant and decedent were, or by ordinary care should have been, equally advised that such method was not reasonably safe, and equally advised of all the dangers incident to the work according to such method, which instruction was wholly unsupported by the evidence, was erroneous and ground for new trial. 6. We have already in the previous paragraph disposed of the statute of limitations pleaded by the defendants upon the theory that John E. Sifford and Mrs. Pearre were active trustees for the De Lashmutt children, so that the statute running against them, or either of them, operated vicariously upon these plaintiffs. There having been no such relation, as we have already shown, the conclusion founded upon it falls. The plaintiffs are therefore not barred. The judgment of the St. Clair circuit court is reversed, and the cause remanded, with directions to proceed to an accounting and final judgment in accordance with the views herein expressed. PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. BOND, J., concurs in result. [Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 57-61; Dec. Dig. § 39.*] 4. MASTER AND SERVANT (§ 203*) - INJURIES TO SERVANT-ASSUMED RISK." "Assumption of risk" is a term or condition in a contract of employment, either express or implied from the circumstances of the the dangers of injury ordinarily or obviously employment, by which the employé agrees that incident to the discharge of his duty and the particular employment shall be at his own risk. In Missouri, however, the doctrine is subject to modification, in that there is another provision, express or implied, that the master will exercise ordinary care to protect the servant by providing him with a safe place to work, the risks assumed being only those which remain after the master has exercised ordinary care, •For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the servant not being required to assume the risks of the master's negligence in a situation springing suddenly and imperiously demanding the instant use of care and caution. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 538-543; Dec. Dig. § 203.* For other definitions, see Words and Phrases, vol. 1, pp. 589-591; vol. 8, pp. 7584, 7585.] 5. APPEAL AND ERROR ($ 882*)-INSTRUCTIONS -RIGHT TO ALLEGE ERROR. Where decedent in his own instructions submitted the issue of due care, he could not object to an instruction submitting the issue of contributory negligence as an affirmatiye defense. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. 8 882.*] 6. MASTER AND SERVANT (§ 296*)-CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS. An instruction on contributory negligence the accident, plaintiff, a millwright, was employed by Superintendent Brown to make some alterations in or put in some new bleachers. The bleachers or alterations were completed ready for testing, and while to that end plaintiff was assisting Brown in putting on a belt connecting the bleachers with the power he was thrown off a ladder and severely injured by the sudden and unexpected starting of the machinery. His suit for damages is bottomed on those injuries, and there is no question here as to their gravity. It will not be necessary to set forth even a summary of the petition; for plaintiff's principal instruction was within its allegations, and we reproduce that to show the pleaded grounds of negligence and the theory, on which recovery was sought, viz.: that decedent "was bound to use his senses and intelligence and experience" in and about the "The court instructs the jury that it was the doing of his work, and, if he failed to use ei-duty of defendant to exercise ordinary care to ther to the extent to which a person of ordi- furnish plaintiff a reasonably safe place in nary care of his age and experience would have which to do his work, and to do no act of negused them under the circumstances, and such ligence, as defined by these instructions, which failure directly contributed to cause his inju- would render such place not reasonably safe for ries, then he could not recover, was improper plaintiff to perform the usual and ordinary work in the use of the clause quoted, as calculated required of him by defendant, while engaged in to mislead. its performance, taking into consideration the kind and character of work to be done and the [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*] place in which it was to be done. If, therefore, you shall find and believe from the evidence that on or about the 20th day of August, 1904, plain Appeal from Circuit Court, Jackson Coun- tiff was in the employ of defendant as millty; Edward E. Porterfield, Judge. wright, at its mill in Kansas City, Mo., and if you shall further find and believe from the evidence that the defendant, at said time and place, had in its employ Patrick Brown as superinsaid Brown had authority to hire and discharge tendent or head miller at its said mill, and that plaintiff and direct him what to do and how to perform his duties in said mill, and if you shall further find and believe from the evidence that Action by Edward B. Barker, revived after his death pending appeal in the name of Sam B. Strother, as administrator of plaintiff's estate, against the Kansas City Milling Company. From an order granting plaintiff a new trial after verdict for defendant, it ap-on or about the said date plaintiff was or.peals. Affirmed. Boyle & Howell, Joseph S. Brooks, D. W. Johnson, E. R. Morrison, and Edw. J. White, all of Kansas City, for appellant. Shannon C. Douglass, Isaac N. Watson, and Walter W. Calvin, all of Kansas City, for respondent. LAMM, J. In a case sounding in tort in the Jackson circuit court, wherein the damages were laid at $15,000, the jury found for defendant. Thereat, on motion, the court ordered the verdict set aside, granting a new trial on the ground of error in defendant's given instructions. Thereat defendant, a corporation, appealed from such order. Plaintiff dying pending appeal, Strother, administrator, is substituted. For convenience we continue to use "plaintiff." Defendant owned a flouring mill in Kansas City of a capacity of 600 barrels daily. In this mill were devices known as bleachers, agitators, and conveyors operated by belts, pulleys, and shafting and run by steam pow er. These bleachers, etc., were devices to whiten the flour by the use of a current of air and electricity. One Brown was defendant's superintendent and in full control and management of the mill and all the men employed therein. About four weeks before dered and directed by said Brown, in his capacity as superintendent or head miller as aforesaid, to get a ladder and go upon same, and thereby assist said Brown to put a belt upon the pulley mentioned in evidence, and if you shall further find from the evidence that, in obedience to said order, plaintiff did go upon said ladder, and while standing thereon it became reasonably necessary for plaintiff to occupy a stooping position for the purpose of raising the slack in said belt, and that he did occupy said stooping posaid at and immediately before the happening sition on said ladder for the purpose aforeof the injury complained of, and if you shall further find and believe from the evidence that while plaintiff was in such stooping position on said ladder for the purpose aforesaid, if you find he was in such position, defendant's superintendent or head miller, Patrick Brown, without warning to plaintiff, and without plaintiff's knowledge of his intention so to do, negligently and suddenly threw the belt into position on said pulley to start said belt and pulley revolving, and if you shall further find and believe from the evidence that by reason of such act of suddenly throwing said belt upon said pulley and starting it to revolving as aforesaid, if you find he did so, the position or place in which plaintiff was working was rendered extra or unusually hazardous, and not a reasonably safe place for plaintiff to work, and was not a usual and ordinary danger of such employment, and if you shall further find from the evidence that said Brown knew, or, by the exercise of ordinary care on his part, could have known, of the position in which plaintiff was situated immediately before and at the time of *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes the putting on of said belt, and of the in- while experienced in putting on belts, had creased and unusual hazard, if any, of starting never put on one with Brown, and was said belt and pulley while plaintiff was in such stooping position, if you find he was in such not familiar with his ways and methods. stooping position at said time, and that said Brown's left hand was crippled, and plaintiff Brown, under all the facts shown in evidence did not know that fact. At a certain time could, by the exercise of ordinary care on his Brown directed plaintiff to assist him in part, have warned plaintiff that he was going to put said belt on said pulley in time to have putting on the new belt that hung over the permitted the plaintiff to have let go of upper shaft hard by the dead pulley, and, said belt, if you find he had hold of the same, as we understand it, also hung limp about but said Brown failed to do so, and if you the driving or live pulley on the lower shaft. shall further find and believe from the evi- i dence that at said time and place plaintiff The usual way of putting on such a belt is was in the exercise of such care for his own to first put it on the dead pulley and then on safety as a reasonably prudent person would the live one, but in this case that plan was exercise under like or similar circumstances, and that as a direct result of said Brown's sud- impossible, because there was no room on denly throwing said belt into position to start either side of the live pulley for the belt to said belt and pulley revolving, without any play in. Plaintiff knew that fact, and knew warning to plaintiff, if you find that he did so without any warning to plaintiff, and that he the belt would be brought in contact with the thereby put the plaintiff in a position of in- live pulley first, and while in such contact creased and unusual danger or hazard as afore- the edge of the belt above would be pressed said, if any, and that as a direct result thereof or slipped on the dead pulley until by fricplaintiff was thereby thrown from his position on said ladder to the floor of said mill and in- tion the power from below would be comjured thereby, as a direct result thereof, then municated through the driving pulley to the your verdict must be for the plaintiff." dead one. All sides agree that in putting on a belt in that way there comes an instant of time, as the belt is being shoved over toward the crown of the dead pulley, when it begins to bite or feed (one witness used the term "crawl on"), and that such fact can be “felt” by the man pressing it on. When that precise time is reached, then, by pressure on the edge of the belt by a gloved hand, it goes on, and the full power is at once communicated from the driving to the dead pulley. In order to put on a heavy belt like the one in question in said way and with ladders (as here) two men are necessary; one to put the belt on the dead pulley, and the other to lift the belt, or, as expressed by plaintiff, "to hand up the slack"-in this instance several feet. When Brown directed plaintiff to assist in putting on the belt, plaintiff suggested that Bennett take part. We get the idea that plaintiff's proposition was that Bennett act instead of Brown, and that plaintiff preferred to work with Bennett, because putting on a new, stiff, and heavy belt in the way proposed was a ticklish operation attended with danger, and it is better for the two men to have worked together till they think and act in accord. Brown did not'take plaintiff's suggestion, but directed plaintiff to assist him, and plaintiff acquiesced. Brown was a man of experience in putting on belts, and did a great deal of it as a part of his daily routine of duty as superintendent; sometimes with the assistance of others. The shaft carrying the dead pulley was so far from the floor that ladders were necessary to stand on. Two were at hand, to wit, a long and a short one. Brown took the long ladder and left the short one for plaintiff. The significance of this was that Brown would be higher than plaintiff in putting on the belt, and this in turn meant that Brown, having the farther reach-up, would put the belt over the dead pulley, and that plaintiff, from a lower position, would pull up the slack and hand it to Brown. That was the way it was done. Ac Plaintiff introduced evidence tending to prove the facts hypothesized and outlined in that instruction and the averments of his petition. The case will proceed on appeal more understandingly by summarizing the tendency of plaintiff's proof, viz.: The bleachers, agitators, etc., were in an upper story of the mill. The shaft operating them was close to the ceiling of the story below. This shaft may be called the "upper shaft." On this upper shaft was a pulley 40 inches in diameter and 10 inches wide, which, for the purposes of this case, we will call the "dead pulley." The edges of this pulley were arranged so that the pulley had a rise towards the center, called a "crown." In the room below this upper shaft close to the ceiling was another shaft directly connected by gearing and belts to the power. This shaft may be called the "lower shaft." On this lower shaft was a pulley 30 inches in diameter and 10 inches wide, which, for the purposes of this case, will be called the "live" or "driving pulley." It revolved at the rate of 280 revolutions per minute. The live pulley was not directly under the dead one, but to one side, so that when the belt connecting the two was on it stood at an angle of, say, 45 de grees. Holes were made in the floor at the right places above the live pulley through which the endless belt passed. The alterations had been made in the bleaching devices or new ones installed by plaintiff and another millwright, Bennett, and the two had tested the machinery by an old, light, 6-inch belt, which was found insufficient. Thereupon, by direction of Brown, the two made a new, heavy, stiff, 8-inch belt of two-ply leather, about 75 pounds in weight and 64 feet long. They put it over the upper and lower shafts, and made an endless belt of it by beveling the ends (making tongue laps) and fastening them together with "cement" and by hammering the tongue laps and leaving the cement to "set" until ready for use. Plaintiff, |