SMITH, P. J.
This is an action of replevin in which plaintiff had judgment and defendants appealed. The case disclosed by the record is something like this:
The plaintiff is a business corporation engaged in the manufacture of agricultural implements and the defendant Allen was a retail dealer in such implements in this state. The plaintiff sold said Allen the implements which were taken under the writ. Two sales were made by plaintiff to Allen— •one on November 16, 1894, and another on June 12, 1895. Several notes were taken for the purchase price of the implements so sold. A contract was entered into between plaintiff and Allen at the time of the sale, by the terms of which it was provided that the sales should be upon the condition that the implements so sold should remain the property of plaintiff until final payment in full was made therefor.
On January 2, 1896, Allen made a general assignment, under the statute, to the other defendant. At that time he owed the plaintiff eight notes aggregating in amount about $1,934.58. One of these amounted to $673.71. Included in the assignment were the goods which were taken under the writ from the possession of the assignee a few days after the execution of the same. The plaintiff’s evidence tended to show that-the replevied goods were those for which the note for $673.71 was given, while that of the defendants [308]*308was to the contrary. The plaintiff had all of the notes except that for $673.71 allowed by the assignee and on which allowances a dividend of 15 per cent was paid by him.
At the trial of this case the plaintiff proved that at the time of filing the notes for $1,260.87 before the assignee it offered to surrender the note for $673.71, and to credit the value of the goods taken in replevin in the same. The plaintiff also offered to return the last named note and to cancel the same. It further appeared from the evidence that the said Allen, at the time he gave the orders to plaintiff for the goods therein specified, was insolvent and did not intend to pay for the same. This was practically undisputed. The case was tried by the court without the intervention of a jury. The plaintiff asked no instructions but the defendants asked six, all of which were given except the third.
It goes without saying that if the sale of the goods were procured from plaintiff by the fraud of Allen, and that in consequence thereof no title passed to him, the assignee stood in a situation not different from him in respect to such goods. Gregory v. Tavenner, 38 Mo. App. 628; Dilworth v. McKelvy, 30 Mo. 149. If Allen bought the goods without intending to pay for them, then no title passed to him which he could pass to his statutory assignee. Reid v. Lloyd, 52 Mo. App. 278. Such goods in the possession of the assignee were as subject to be taken by plaintiff in replevin as if they had remained in the possession of Allen, the vendee. Cob-bey on Replevin, sections 262, 263. It can make no difference whether all the goods taken under the writ were obtained by Allen from plaintiff on the first or second order, or, that part of them were obtained on one order and a part under the other, since it indubitably appears that neither sale was effectual to pass the title to the vendee on account of the presence therein of the vitiating element of fraud. Under the evidence the court might well have found that no title to the goods passed to the vendee at either sale and that therefore all [309]*309or any part of them were subject to be retaken by tbe vendor out of the possession of tbe assignee.
But tbe defendants complain of the action of tbe court in refusing to consider tbe case on tbe theory presented by tbe third instruction, which was, in effect, that if certain specified articles of property described in tbe petition and taken under tbe writ were sold for prices mentioned in the contracts on tbe terms that tbe purchase price should become due January 1, 1896, but to bear interest as to some of said articles from September 1, 1895, and as to all others from October 1, 1895; and that about June 12, 1895, said Allen executed to plaintiff notes for and including tbe purchase price of said articles, in accordance with tbe terms of said purchase thereof, and that plaintiff presented said notes to tbe assignee and the same were allowed, and a dividend of 15 per cent paid thereon, and that this was done since this action was brought, then tbe finding should be for defendant Wayland, tbe assignee. In other words, tbe theory of this instruction is that if tbe plaintiff brought this action, though it involved a disaffirmance of tbe sale of tbe goods referred to, and afterwards obtained from tbe assignee an allowance or judgment on tbe notes, thereby affirming such sale, tbe plaintiff is estopped to prosecute this action. Tbe plaintiff exercised its right of election of remedies by preferring and adopting that in replevin to retake tbe goods and thereby dis-affirm tbe sale. The allowances of tbe notes heretofore referred to were made after tbe institution of this suit. There was evidence adduced that some of tbe allowed notes were given for tbe purchase price of part of tbe goods taken under tbe Avrit. After tbe allowances were made tbe plaintiff was paid a dividend thereon; and tbe question now raised is, can tbe plaintiff have both judgments or is it estopped by its action in obtaining tbe allowance, and receiving tbe dividend thereon, to prosecute tbe inconsistent remedy afforded by this action?
[310]*310The doctrine of election which presents the assertion of repugnant rights is but an extension of the law of equitable estoppel. Fox v. Windes, 121 Mo. 502. In Lapp v. Ryan, 23 Mo. App. 136, which case was approved in Johnson-Brinkman Com. Co. v. Railway, 126 Mo. 344, it was said that, a vendor can not “at one and the same time sue for the purchase money, attaching the goods as the property of the vendee for the debt due to him from the vendee, which included the purchase money for the identical goods, and maintain an action of replevin for the goods. In this case the very least that can be said is, that the plaintiffs were bound to stand or fall upon the state of facts existing at the time when the replevin suit was brought. And when this suit was brought, they were prosecuting a suit against their vendee, through whom the defendant in this action claims, for the purchase money of these very goods, and they were holding the levy of an attachment upon them in the same suit. By these acts they had estopped themselves from rescinding the sale and claiming these goods as their own.” We .do not doubt that under the law as it has been declared in this state in Nanson v. Jacob, 93 Mo. 331; Com. Co. v. Railway, supra; and Lapp v. Ryan, supra, that the assignee could have successfully defended against the allowance of the notes had he chosen to have done so, but having omitted to do that, can he invoke the doctrine of estoppel to defeat the plaintiff’s action to retake the goods or any part of them ?
But since the defendant did not plead the defense of estoppel, was it in a situation to require a consideration of the case by the court on that theory? In Young v. Glascock, 19 Mo. 574, it was said, “in the action of replevin, as in that of ejectment, when the pleading on the part of the plaintiff is a general averment of ownership of the property, and the consequent right of possession, any proof on the part of the defendant which goes to show that plaintiff at the time of the institution of the suit, was not the actual owner and was [311]
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SMITH, P. J.
This is an action of replevin in which plaintiff had judgment and defendants appealed. The case disclosed by the record is something like this:
The plaintiff is a business corporation engaged in the manufacture of agricultural implements and the defendant Allen was a retail dealer in such implements in this state. The plaintiff sold said Allen the implements which were taken under the writ. Two sales were made by plaintiff to Allen— •one on November 16, 1894, and another on June 12, 1895. Several notes were taken for the purchase price of the implements so sold. A contract was entered into between plaintiff and Allen at the time of the sale, by the terms of which it was provided that the sales should be upon the condition that the implements so sold should remain the property of plaintiff until final payment in full was made therefor.
On January 2, 1896, Allen made a general assignment, under the statute, to the other defendant. At that time he owed the plaintiff eight notes aggregating in amount about $1,934.58. One of these amounted to $673.71. Included in the assignment were the goods which were taken under the writ from the possession of the assignee a few days after the execution of the same. The plaintiff’s evidence tended to show that-the replevied goods were those for which the note for $673.71 was given, while that of the defendants [308]*308was to the contrary. The plaintiff had all of the notes except that for $673.71 allowed by the assignee and on which allowances a dividend of 15 per cent was paid by him.
At the trial of this case the plaintiff proved that at the time of filing the notes for $1,260.87 before the assignee it offered to surrender the note for $673.71, and to credit the value of the goods taken in replevin in the same. The plaintiff also offered to return the last named note and to cancel the same. It further appeared from the evidence that the said Allen, at the time he gave the orders to plaintiff for the goods therein specified, was insolvent and did not intend to pay for the same. This was practically undisputed. The case was tried by the court without the intervention of a jury. The plaintiff asked no instructions but the defendants asked six, all of which were given except the third.
It goes without saying that if the sale of the goods were procured from plaintiff by the fraud of Allen, and that in consequence thereof no title passed to him, the assignee stood in a situation not different from him in respect to such goods. Gregory v. Tavenner, 38 Mo. App. 628; Dilworth v. McKelvy, 30 Mo. 149. If Allen bought the goods without intending to pay for them, then no title passed to him which he could pass to his statutory assignee. Reid v. Lloyd, 52 Mo. App. 278. Such goods in the possession of the assignee were as subject to be taken by plaintiff in replevin as if they had remained in the possession of Allen, the vendee. Cob-bey on Replevin, sections 262, 263. It can make no difference whether all the goods taken under the writ were obtained by Allen from plaintiff on the first or second order, or, that part of them were obtained on one order and a part under the other, since it indubitably appears that neither sale was effectual to pass the title to the vendee on account of the presence therein of the vitiating element of fraud. Under the evidence the court might well have found that no title to the goods passed to the vendee at either sale and that therefore all [309]*309or any part of them were subject to be retaken by tbe vendor out of the possession of tbe assignee.
But tbe defendants complain of the action of tbe court in refusing to consider tbe case on tbe theory presented by tbe third instruction, which was, in effect, that if certain specified articles of property described in tbe petition and taken under tbe writ were sold for prices mentioned in the contracts on tbe terms that tbe purchase price should become due January 1, 1896, but to bear interest as to some of said articles from September 1, 1895, and as to all others from October 1, 1895; and that about June 12, 1895, said Allen executed to plaintiff notes for and including tbe purchase price of said articles, in accordance with tbe terms of said purchase thereof, and that plaintiff presented said notes to tbe assignee and the same were allowed, and a dividend of 15 per cent paid thereon, and that this was done since this action was brought, then tbe finding should be for defendant Wayland, tbe assignee. In other words, tbe theory of this instruction is that if tbe plaintiff brought this action, though it involved a disaffirmance of tbe sale of tbe goods referred to, and afterwards obtained from tbe assignee an allowance or judgment on tbe notes, thereby affirming such sale, tbe plaintiff is estopped to prosecute this action. Tbe plaintiff exercised its right of election of remedies by preferring and adopting that in replevin to retake tbe goods and thereby dis-affirm tbe sale. The allowances of tbe notes heretofore referred to were made after tbe institution of this suit. There was evidence adduced that some of tbe allowed notes were given for tbe purchase price of part of tbe goods taken under tbe Avrit. After tbe allowances were made tbe plaintiff was paid a dividend thereon; and tbe question now raised is, can tbe plaintiff have both judgments or is it estopped by its action in obtaining tbe allowance, and receiving tbe dividend thereon, to prosecute tbe inconsistent remedy afforded by this action?
[310]*310The doctrine of election which presents the assertion of repugnant rights is but an extension of the law of equitable estoppel. Fox v. Windes, 121 Mo. 502. In Lapp v. Ryan, 23 Mo. App. 136, which case was approved in Johnson-Brinkman Com. Co. v. Railway, 126 Mo. 344, it was said that, a vendor can not “at one and the same time sue for the purchase money, attaching the goods as the property of the vendee for the debt due to him from the vendee, which included the purchase money for the identical goods, and maintain an action of replevin for the goods. In this case the very least that can be said is, that the plaintiffs were bound to stand or fall upon the state of facts existing at the time when the replevin suit was brought. And when this suit was brought, they were prosecuting a suit against their vendee, through whom the defendant in this action claims, for the purchase money of these very goods, and they were holding the levy of an attachment upon them in the same suit. By these acts they had estopped themselves from rescinding the sale and claiming these goods as their own.” We .do not doubt that under the law as it has been declared in this state in Nanson v. Jacob, 93 Mo. 331; Com. Co. v. Railway, supra; and Lapp v. Ryan, supra, that the assignee could have successfully defended against the allowance of the notes had he chosen to have done so, but having omitted to do that, can he invoke the doctrine of estoppel to defeat the plaintiff’s action to retake the goods or any part of them ?
But since the defendant did not plead the defense of estoppel, was it in a situation to require a consideration of the case by the court on that theory? In Young v. Glascock, 19 Mo. 574, it was said, “in the action of replevin, as in that of ejectment, when the pleading on the part of the plaintiff is a general averment of ownership of the property, and the consequent right of possession, any proof on the part of the defendant which goes to show that plaintiff at the time of the institution of the suit, was not the actual owner and was [311]*311not entitled to the possession thereof, is admissible under the general issue, even though it extend to the proof of fraud in the acquisition of the plaintiff’s title, or that the ownership and right of possession are in a third person.” And to the same effect is Stern Auc. & Com. Co. v. Mason, 16 Mo. App. 475, and Eidson v. Hedger, 38 Mo. App. 52.
In Greenway v. James, 34 Mo. 328, and in other cases, it was held that where the cause of action which once existed has been determined by some matter which subsequently transpired, such new matter must, to comply with the statute, be specifically pleaded. The requirement of the practice act that the new matter constituting a defense must be specially pleaded, applies to such extraneous matters as are not included within the allegations necessary to support the plaintiff’s case. Northrup v. Ins. Co., 47 Mo. 435. The plaintiff had the right to elect either one of two remedies. He elected that afforded by this action. But by instituting the second proceeding, if the contention of the defendants can be sustained, the remedy adopted by the plaintiff in the first instance was extinguished and determined. If this new matter constituted sT defense, it was of that extraneous character, which, to be available, is required by the statute to be specially pleaded. An estoppel of this kind must be pleaded in order that advantage may be taken of it at the trial. Plow Co. v. Lang, 55 Mo. App. 349; Miller v. Anderson, 19 Mo. App. 71; Throckmorton v. Pence, 121 Mo. 50; Bank v. Doran, 109 Mo. 40; Avery v. Railway, 113 Mo. 561; Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235. But since the defense of estoppel was not pleaded in defendant’s answer, the trial court very properly refused to consider the defendant’s case on that theory.' This was sufficient reason, if for none other, for refusing the defendants’ third instruction.
Allen, who was made a defendant with "Wayland, his assignee, appeared and pleaded to the merits. He seems there[312]*312after to Have been ignored as a party. No instructions were asked as to Mm. All that were asked related to the other defendant. The judgment is, however, against both defendants. Erom the evidence presented by the abstract it seems to us that there was no ground whatever for making Allen a defendant in the case, nor for rendering a judgment against him. The judgment should be reversed and the cause dismissed as to him, which we shall order accordingly. State ex rel. v. Tate, 109 Mo. 265.
The judgment in favor of both defendants for the property therein specified will be amended here, so as to be in favor of the defendant Wayland alone for the return of such property, or the payment of the assessed value thereof, in accordance with the requirements of the statute in such case (30 Mo. 153); and in all other respects the judgment for plaintiff against the defendant "Wayland will stand affirmed.
All concur.