Molen v. Orr
Supreme Court of Arkansas
APPEAL from Garland Circuit Court. Hon. J. B. “Wood, Circuit Judge. There was a fatal variance between the complaint and the proof. The evidence showed that the work was done by Orr & Wirfs and not by Charles G-. Orr, and that it was done for Louisa Molen alone. Orr had no right to sue in his own name, and there was no proof that he was the successor of the firm. Gantt's Digest, sec. 4644; Acts 1877, p. %6; 1 Gr.
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APPEAL from Garland Circuit Court. Hon. J. B. “Wood, Circuit Judge. There was a fatal variance between the complaint and the proof. The evidence showed that the work was done by Orr & Wirfs and not by Charles G-. Orr, and that it was done for Louisa Molen alone. Orr had no right to sue in his own name, and there was no proof that he was the successor of the firm. Gantt's Digest, sec. 4644; Acts 1877, p. %6; 1 Gr. Ev., secs. 58, 66. The evidence shows that Orr was the successor of Orr & Wirf. Actions shall be brought in the name of the real party in i nterest. (Sec. 4469 Gantt’s Digest.) This…
1Opinion of the CourtCockrill, C. J.
The theory of the appellants is, that there was a fatal variance between the cause of action alleged in the complaint, and that proved upon the trial. The case presented is this : The appellee sued the appellants to recover the amount of an account due him, as he alleged, for painting a hotel in Hot Springs, and also to enforce a mechanic’s lien against the hotel premises. Upon the trial he proved that the work had been done by him and one Wirfs, who at the time was his partner; that before suit the partnership was dissolved, and Wirfs executed a formal assignment of this and all the other…
2Cases cited2 opinions
- McClellan v. CunninghamTennessee Supreme Court · 1847
- Holmes v. ShandsMississippi Supreme Court · 1854
3Cited by6 opinions
- First National Bank of Monette v. First National Bank of LepantoSupreme Court of Arkansas · 1923
- Voss v. ArthursSupreme Court of Arkansas · 1917
- Braun v. WoollacottCalifornia Supreme Court · 1900
- M., K. & T. Railway Co. v. TurleyCourt Of Appeals Of Indian Territory · 1896
- Bond v. StateSupreme Court of Arkansas · 1892
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