Cannon-Weiner Elevator Co. v. Boswell
Missouri Court of Appeals
Appeal from Bates Circuit Court. — Hon. Cluirles A. Denton, Judge. (1) The verdict and judgment is against the law and the evidence and ridiculously against the weight of the evidence.
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Appeal from Bates Circuit Court. — Hon. Cluirles A. Denton, Judge. (1) The verdict and judgment is against the law and the evidence and ridiculously against the weight of the evidence. (2) The defendant’s counterclaim is based on the written contract price, $1.65 per bushel, for prime seed, and he is permitted to recover on a subsequent alleged oral agreement for another and different grade of .seed, at the same price, which constitutes a variance between the statement in the pleading and the evidence and judgment. This cannot be done. Feurth v. Anderson, 87 Mo. 354; Clements v. Yeates, 69…
1Opinion of the CourtEllison, J.
This action is on an account for $8.68, to which defendant filed a counterclaim of $68.15. Defendant recovered judgment on his counterclaim for $50.00.
The plaintiff bought of defendant all of his timothy seed raised on his farm at $1.65 per bushel “for prime seed, subject to the established reduction for lower grade.” Plaintiff paid $5.00 cash on the contract. In settlement for the seed, plaintiff neglected to deduct or allow for this payment of $5.00 and by mistake one sack of seed was weighed twice. These, with one other small item, made plaintiff’s claim of $8.68. Defendant’s counterclaim…
2Cases cited2 opinions
- Maxwell v. Hannibal & St. Joseph RailroadSupreme Court of Missouri · 1884
- Flanagan Mills & Elevator Co. v. George A. Adams Grain Co.Missouri Court of Appeals · 1906
3Cited by5 opinions
- National Surety Corp. v. City of Excelsior Springs Ex Rel. SchwarzenbachCourt of Appeals for the Eighth Circuit · 1941
- Welch v. MischkeMissouri Court of Appeals · 1911
- Davis v. CulmerMissouri Court of Appeals · 1927
- Koslosky v. BlochMissouri Court of Appeals · 1915
- Mulliken v. HaseltineMissouri Court of Appeals · 1911