Bassett v. Glover
Missouri Court of Appeals
Appeal from the. St. Louis Circuit Court, Hon. George W. Lubke, Judge. Klein & Fisse, for the appellants : The case was tried upon the theory, expressly announced by plaintiff ’ s counsel, that no relief was asked or to be granted except relief at law. In such a case, the court has no authority to render a judgment upon any other contract than the one set out in the petition as the foundation of the action.
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Appeal from the. St. Louis Circuit Court, Hon. George W. Lubke, Judge. Klein & Fisse, for the appellants : The case was tried upon the theory, expressly announced by plaintiff ’ s counsel, that no relief was asked or to be granted except relief at law. In such a case, the court has no authority to render a judgment upon any other contract than the one set out in the petition as the foundation of the action. Leake on Contracts [Ed. 1878] 314, 318 ; 2 Parsons on Contracts [7 Ed.] *495, 497; JRayburn n. jDever, 8 Mo. 104; Leitsendorfer v. Delphy, 15 Mo. 160 ; McGlurg v. Phillips, 49 Mo. 315,…
1Concurrence
Rombauer, P. J.,
delivered a concurring opinion.
I concur in the result of the opinion, but do not concur in the views therein expressed touching the *161admissibility of oral evidence in an action at law upon the contract, varying its terms and conditions. For that reason I prefer to place my concurrence solely upon the ground hereinafter stated.
The Supreme Court has repeatedly decided that, where it is manifest that if the judgment were reversed the result upon a new trial would be the same as upon the first trial, the judgment will not be reversed, even though the case has been tried upon an…
2Cases cited8 opinions
- Mississippi River Bridge Co. v. RingSupreme Court of Missouri · 1874
- Jackson v. MagruderSupreme Court of Missouri · 1872
- Brown v. Kansas City, St. Joseph & Council Bluffs Railway Co.Missouri Court of Appeals · 1886
- Fell v. Rich Hill Coal Mining Co.Missouri Court of Appeals · 1886
- Conley v. DoyleSupreme Court of Missouri · 1872
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