Stark Bros. Nurseries & Orchards v. Mayhew
Missouri Court of Appeals
Appeal from Barry Circuit Court. — Ho». Carr ' McNatt, Judge. (1) A partial failure of consideration is an affirmative defense, and in order to be available, it musí be pleaded. McCormick v. Crawford, 98 Mo. App. 3191; Skeperd v. Padgitt, 91 Mo. App. 473; Crensbaw v. Looker, 185 Mo. 387. (2) The matters pleaded in tbe first paragraph of tbe answer constitute a breach of warranty, and have to be pleaded as a counterclaim in order to be available.
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Appeal from Barry Circuit Court. — Ho». Carr ' McNatt, Judge. (1) A partial failure of consideration is an affirmative defense, and in order to be available, it musí be pleaded. McCormick v. Crawford, 98 Mo. App. 3191; Skeperd v. Padgitt, 91 Mo. App. 473; Crensbaw v. Looker, 185 Mo. 387. (2) The matters pleaded in tbe first paragraph of tbe answer constitute a breach of warranty, and have to be pleaded as a counterclaim in order to be available. Chenshaw v. Looker, 185 Mo. 387; McCormick v. Crawford, 98 Mo. App. 319; Shepherd v. Padgitt, 91 Mo. App. 473; Stephens v. Supply Co., 67 Mo. App.…
1Opinion of the Court
COX, J. —
Action on two promissory notes. The petition is in the usual form. The answer is in two counts. The first count is what defendants denominate a total failure of consideration. The second count is a counterclaim by D. S. Mayhew based upon fraud in the sale of certain trees which was the consideration for the notes. The reply admits the sale of the trees and giving* the notes in consideration therefor, denies g*enerally all other allegations and then pleads the 5 years Statute of Limitations. There was a trial by jury and verdict against plaintiff on the notes and by peremptory…
2Cases cited6 opinions
- Ferguson Implement Co. v. ParmerMissouri Court of Appeals · 1908
- State ex rel. Bell v. NolanSupreme Court of Missouri · 1889
- Broderick v. AndrewsMissouri Court of Appeals · 1908
- Shepherd v. PadgittMissouri Court of Appeals · 1902
- Thurmond v. Ash Grove White Lime Ass'nMissouri Court of Appeals · 1907
1 more not listed; retrieve them via the Exa API.
3Cited by3 opinions
- United States v. Stanolind Crude Oil Purchasing Co.Court of Appeals for the Tenth Circuit · 1940
- Peterson v. Denny-Renton Clay & Coal Co.Washington Supreme Court · 1916
- Interstate Tire Co. v. Gillette Rubber Co.Missouri Court of Appeals · 1935