Kennerly v. Somerville
Missouri Court of Appeals
Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge. There was a fatal variance between the petition and the evidence. The ease alleged was that defendant employed plaintiff to sell defendant’s property, and that plaintiff found a buyer to whom defendant did sell it. The proof wholly failed to show a sale, .but established an exchange of properties. Martin v. Ash-land Mill Go., 49 Mo. App. 23, and citations; Benj. on Sales [4 Am.
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Appeal from the St. Louis City Circuit Court. — Hon. Daniel Dillon, Judge. There was a fatal variance between the petition and the evidence. The ease alleged was that defendant employed plaintiff to sell defendant’s property, and that plaintiff found a buyer to whom defendant did sell it. The proof wholly failed to show a sale, .but established an exchange of properties. Martin v. Ash-land Mill Go., 49 Mo. App. 23, and citations; Benj. on Sales [4 Am. Ed.], secs. 2, 85, pp. 2, 109; 2 Bouv. Law Die. 493; O’Brien v. Loomis, 43 Mo. App. 29; Wright v. Fonda, 44 Id. 634; Whipple v. Building Ass’n,…
1Opinion of the CourtBond, J.
Plaintiff sues for services alleged to have been rendered “in procuring a purchaser for defendant’s property.” This is the second appeal in the case, plaintiff having twice recovered judgment in the trial court. On the former appeal (64 Mo. App. 75), the case was remanded for error in the instruction given on behalf of the plaintiff, wherein the jury were told that if they found for plaintiff they should allow her the usual commission charged by real estate agents. *225The evidence on the second trial was substantially the same as that adduced on the former trial. The plaintiff having recovered a…
2Cases cited1 opinion
- Kennerly v. SommervilleMissouri Court of Appeals · 1895
3Cited by5 opinions
- Freund Motor Co. v. Alma Realty & Investment Co.Missouri Court of Appeals · 1940
- Prichard v. FosterCourt of Appeals of Texas · 1914
- Swiss-American Importing Co. v. Variety Food Products Co.Missouri Court of Appeals · 1968
- Cook v. GordonOregon Supreme Court · 1914
- Opinion No. 149-76 (1976), Missouri Attorney General Reports1976