Fadley v. Smith
Missouri Court of Appeals
Appeal from Harrison Circuit Court, Hon. Chas H. S. Goodman, Judge, The case is stated in the opinion. I. The demurrer was not too late. Actions ex contractu and ex delicto could not be united, under the code, in the same petition ; and a, motion at the close of plaintiff ’ s evidence to compel him to elect was not too late. South-worth Go. n. Lamb, 82 Mo. 242; sect. 3572, Kev. Stat. II.
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Appeal from Harrison Circuit Court, Hon. Chas H. S. Goodman, Judge, The case is stated in the opinion. I. The demurrer was not too late. Actions ex contractu and ex delicto could not be united, under the code, in the same petition ; and a, motion at the close of plaintiff ’ s evidence to compel him to elect was not too late. South-worth Go. n. Lamb, 82 Mo. 242; sect. 3572, Kev. Stat. II. The contract admitted in evidence was at variance with the allegations in the petition and should have been excluded. Jones v. Louderman, 39 Mo. 287: Harris v. Railroad, 37 Mo. 308. III. The instructions…
1Opinion of the CourtEllison, J.
Defendant sold plaintiffs a portable saw mill and gave a written guaranty in the bill of sale,. *91whereby he guaranteed the mill to saw five thousand feet of lumber per day, if properly managed by competent men. The guaranty was to continue for ten days from its date, only, and contained a stipulation that in case the mill failed to perform as agreed, plaintiffs should notify defendant “within ten days from this date (date of guaranty) of said failure.”
“Pending the trial of said cause” defendant, wdthout leave, filed a demurrer to the petition and asked to withdraw his answer.' The court…
2Cases cited8 opinions
- Mooney v. KennettSupreme Court of Missouri · 1854
- Christal v. CraigSupreme Court of Missouri · 1883
- Pickering v. Mississippi Valley National Telegraph Co.Supreme Court of Missouri · 1871
- House v. LowellSupreme Court of Missouri · 1870
- Otis v. Mechanics' BankSupreme Court of Missouri · 1864
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3Cited by11 opinions
- State Ex Rel. Adler v. DouglasSupreme Court of Missouri · 1936
- Long Bros. v. J. K. Armsby Co.Missouri Court of Appeals · 1891
- Welsh v. StewartMissouri Court of Appeals · 1888
- Boyd v. St. Louis Transit Co.Missouri Court of Appeals · 1904
- Walters v. HamiltonMissouri Court of Appeals · 1898
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