Stepp v. Livingston
Missouri Court of Appeals
Appeal from the Grundy Circuit Court. — Hon. S. C. Peioe, Special Judge. ' (1) A plaintiff can not abandon his petition and recover upon a cause of action stated in his reply for the first time, and unless the judgment is supported by proof of the allegations of the petition it will not be upheld. Crawford v. Spencer, 36 Mo. App. 78, 82; Hill v. Mining Co., 119 Mo. 9, 30; Mohney v. Reed, 40 Mo. App. 99,110, and cases cited; McMahillv. Jenkins, 69 Mo.
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Appeal from the Grundy Circuit Court. — Hon. S. C. Peioe, Special Judge. ' (1) A plaintiff can not abandon his petition and recover upon a cause of action stated in his reply for the first time, and unless the judgment is supported by proof of the allegations of the petition it will not be upheld. Crawford v. Spencer, 36 Mo. App. 78, 82; Hill v. Mining Co., 119 Mo. 9, 30; Mohney v. Reed, 40 Mo. App. 99,110, and cases cited; McMahillv. Jenkins, 69 Mo. App. 281. (2) It is the well settled law of the state that the splitting of a demand without defendant’s consent gives the assignee no right of…
1Opinion of the CourtSmith, P. J.
This is an action of indebitatus assumpsit to recover for personal services.
PLEAIINGS. The petition alleged that one Black “at the special instance and request of the defendant, sold a large amount of goods, wares and merchandise and for which services the defendant was justly indebted to him, the said Black, in the sum of $425, which sum is now due and unpaid.” It was also further alleged that the said Black had assigned the said account to the plaintiff.
The answer denied generally the allegations of the petition. This was supplemented with the further allegation that defendant employed said…
2Cases cited1 opinion
- Alkire Grocer Co. v. TagartMissouri Court of Appeals · 1895
3Cited by4 opinions
- Thayer v. Denver & Rio Grande R. R.New Mexico Supreme Court · 1916
- Ham v. St. Louis & San Francisco RailroadMissouri Court of Appeals · 1910
- Morrison Manufacturing Co. v. RoachMissouri Court of Appeals · 1904
- First National Bank of Fredonia v. MeadowsSupreme Court of Missouri · 1970