Hamlin v. Carruthers
Missouri Court of Appeals
Appeal from the St. Louis Circuit Court, George W. Lubke, Judge. Where there is an entire failure to prove the cause of action as alleged, there can be no recovery by the plaintiff unless he amend his petition to conform to the proof. WaldMer O. JR. JR. Go., 71 Mo. 514; JLuckie r>. JR. JR. Go., 67 Mo., 245; Edens O. JR. B. Go., 72 Mo. 212; Price v. JR. P. Go., Id. 414; Harrison O. P. P. Go., 74 Mo. 369. Only those issues raised by the pleading-s can be tried.
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Appeal from the St. Louis Circuit Court, George W. Lubke, Judge. Where there is an entire failure to prove the cause of action as alleged, there can be no recovery by the plaintiff unless he amend his petition to conform to the proof. WaldMer O. JR. JR. Go., 71 Mo. 514; JLuckie r>. JR. JR. Go., 67 Mo., 245; Edens O. JR. B. Go., 72 Mo. 212; Price v. JR. P. Go., Id. 414; Harrison O. P. P. Go., 74 Mo. 369. Only those issues raised by the pleading-s can be tried. Issues can not be raised by the evidence and instructions. Boss O. Boss, 81 Mo. 84; Newham O. Kenton, 79 Mo. 382; Bullene v. Smith, 73…
1Opinion of the CourtLewis, P. J.
The plaintiff is holder, through successive transfers, of a sight draft for three hundred and forty dollars, drawn by L. E. Whybark on the defendant, who was doing a commission business under the style of W. W. Carruthers & Co., together with a bill of lading for a car load of wheat shipped by Whybark from Gunn City, over the Missouri Pacific Railway, and consigned to the defendant at St. Louis, care of Shirmer & Co. The wheat was received at the Central Elevator in St. Louis, where the customary railway manifest was handed over, drawn in the name of the defendant, with no mention of Shirmer…
2Cases cited2 opinions
- Beardslee v. MorgnerSupreme Court of Missouri · 1880
- Sandeen v. Kansas City, St. Joseph & Council Bluffs RailroadSupreme Court of Missouri · 1883
3Cited by7 opinions
- Hill v. MorrisMissouri Court of Appeals · 1886
- Zinn v. Denver Livestock Commission Co.Supreme Court of Colorado · 1920
- Missouri Pacific Railway Co. v. McLineyMissouri Court of Appeals · 1888
- Burrton State Bank v. Pease-Moore Milling Co.Missouri Court of Appeals · 1912
- Dickson v. Merchants' Elevator Co.Missouri Court of Appeals · 1891
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