Roark v. Pullam
Missouri Court of Appeals
Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge. (1) If the contract proved is not the one pleaded, then there is a fatal variance and plaintiff cannot recover. Barber v. Improvement Co., 131 Mo. App. 717; Laclede Construction Co. y. Tudor Iron Works, 169 Mo. 137. (2) The instruction clearly went beyond the allegations in the statement of plaintiff’s cause of action, whicíi is error. The instructions must be within both the pleadings and evidence.
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Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge. (1) If the contract proved is not the one pleaded, then there is a fatal variance and plaintiff cannot recover. Barber v. Improvement Co., 131 Mo. App. 717; Laclede Construction Co. y. Tudor Iron Works, 169 Mo. 137. (2) The instruction clearly went beyond the allegations in the statement of plaintiff’s cause of action, whicíi is error. The instructions must be within both the pleadings and evidence. State ex rel. v. Ellison, 270 Mo. 645; State ex rel. v. Ellison, 176 S. W. 11; Degonia v. Railroad, 124 Mo. 589; Mansur v.…
1Opinion of the CourtCox, P. J.
Action for damages ■ for breach, of warranty in sale of a bull plaintiff purchased from defendant. The price paid was 6 .cents per lb. which was a fair market value of the animal at the time. After plaintiff had taken possession and paid for the animal and had it loaded in a car to ship to market, a replevin suit was brought before a justice of the peace by J. N. Maxwell against plaintiff, Ed. Rice, J. W. Manning and St. Louis & San Francisco Ry. Co., claiming that he, Maxwell, was the owner of the bull. This trial resulted in a judgment in Maxwell’s favor. An appeal was taken and upon trial…
2Cases cited12 opinions
- Torbert v. JeffreySupreme Court of Missouri · 1901
- Ranney v. MeisenheimerMissouri Court of Appeals · 1895
- Matheny v. StewartSupreme Court of Missouri · 1891
- Ellis v. BrandMissouri Court of Appeals · 1913
- Skinner v. WhitlowMissouri Court of Appeals · 1913
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3Cited by2 opinions
- Universal C.I.T. Credit Corp. v. State Farm Mutual Automobile Insurance Co.Missouri Court of Appeals · 1973
- Monroe v. LyonsSupreme Court of Missouri · 1936