McCarthy v. Wolfe
Supreme Court of Missouri
Appeal from St. Louis Circuit Court. R. S. McDonald, M. L. Gray, and F. Garvey, for appellant. I. The court erred in refusing the 1st instruction asked by the defendant, to-wit, “ that upon the proof made the the plaintiff could not recover.” Plaintiff alleged the loss of the cattle “ through the carelessness, negligence and improper conduct of defendant.” Defendant denied this, and thus the burden was on plaintiff to prove that they were lost by default of defendant.
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Appeal from St. Louis Circuit Court. R. S. McDonald, M. L. Gray, and F. Garvey, for appellant. I. The court erred in refusing the 1st instruction asked by the defendant, to-wit, “ that upon the proof made the the plaintiff could not recover.” Plaintiff alleged the loss of the cattle “ through the carelessness, negligence and improper conduct of defendant.” Defendant denied this, and thus the burden was on plaintiff to prove that they were lost by default of defendant. Plaintiff did not sue for a non-delivery, but for a loss by the neglect of defendant — 4 Eng. Law & Eq. 531, 535-6 ; 3 East,…
1Opinion of the CourtFagg, Judge
This was an action on the part of the respondent to recover of the appellant the value of fifteen head of cattle, alleged to have been lost through his carelessness, negligence, and improper conduct; they were alleged to be worth the sum of five hundred dollars, and constituted a portion of a large lot of cattle which plaintiff had put in charge of the defendant to be fed and taken care of at a stipulated price. It is further averred that eighty-four head of the number in defendant’s possession were upon request redelivered to the plaintiff. The following extract from the petition shows…
2Cited by14 opinions
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- Glover v. SprakerIdaho Supreme Court · 1930
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