Morrow v. Surber
Supreme Court of Missouri
Appeal from Macon Circuit Court. — Hon. Andrew Ellison, Judge. (1) This was an action against Surber and Walker to recover back money obtained by them from the plaintiff by fraud and deceit. It is an action of tort. Plaintiff must recover, if at all, upon the cause of action stated in his petition. He cannot allege one cause and recover on another.
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Appeal from Macon Circuit Court. — Hon. Andrew Ellison, Judge. (1) This was an action against Surber and Walker to recover back money obtained by them from the plaintiff by fraud and deceit. It is an action of tort. Plaintiff must recover, if at all, upon the cause of action stated in his petition. He cannot allege one cause and recover on another. Here was not simply a variance, but an utter failure of prbof to sustain the allegations of the petition, and plaintiff could not recover, at least, without amending his petition ; and hence the instruction given for plaintiff should have been…
1Opinion of the CourtRay, C. J.
This was a suit by Jefferson Morrow, the treasurer of Macon county, to recover back about five hundred dollars paid to defendant Surber, on the following warrant:
‘ ‘ The treasurer of the county of Macon, will pay to William Surber $498.12 out of any money in the treasury, appropriated for payment on M. and M. bonds, belonging to M. and M. fund.
*158“Given at the courthouse this 8th day of October, 1879. By order of the court.
“ John H. Osborne, President.
“Test: Jas. G. Howe, Clerk.”
Wm. G. Walker was also made a party defendant, but the suit was dismissed as to him at the trial.
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2Cases cited2 opinions
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- Columbus Insurance v. WalshSupreme Court of Missouri · 1853
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- State ex rel. Hadley v. AdkinsSupreme Court of Missouri · 1909
- State v. Aisin USA Mfg., Inc.Indiana Supreme Court · 2011
- Mullins v. Kansas CitySupreme Court of Missouri · 1916
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