Gunther Bros. v. Aylor
Missouri Court of Appeals
Appeal from Jasper Circuit Court. — Mon. J. D. Perkins, Judge. (1) We insist there was a change of the cause of action. We do not think the statute allows the plaintiff to change his cause of action by adding new parties, and suing as partners under the firm name of Gunther Brothers & Company. See Wolff v. Vette, 17 Mo. App. 36. (2) The plaintiff must perform his part of the contract before he can demand any compensation from the defendant.
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Appeal from Jasper Circuit Court. — Mon. J. D. Perkins, Judge. (1) We insist there was a change of the cause of action. We do not think the statute allows the plaintiff to change his cause of action by adding new parties, and suing as partners under the firm name of Gunther Brothers & Company. See Wolff v. Vette, 17 Mo. App. 36. (2) The plaintiff must perform his part of the contract before he can demand any compensation from the defendant. In this case there was an entire failure to perform. Harrison v. Railroad, 74 Mo. 364; Brinkerhoff v. Elliott, 43 Mo. App. 185; Hall v. District, 24 Mo.…
1Opinion of the CourtBroaddus, J.
The case originated in a justice’s court and was appealed to the circuit court, where the plaintiff filed an amended statement, which the defendant moved to strike out on the grounds that it stated an entirely different cause of action, and that it changed the parties plaintiffs and substituted new parties. The motion was overruled. The defendant alleges that the action of the court in that respect was error, and renews his contention in this court.
The statement filed in the justice’s court, a3 shown by respondents’ amended abstract, is as follows, to-wit:
“Gunthers Bros. & Co. and H. C.…
2Cases cited7 opinions
- Williams v. Chicago, Santa Fe & California Railway Co.Supreme Court of Missouri · 1892
- Lilly v. TobbeinSupreme Court of Missouri · 1890
- Moore v. H. Gaus & Sons Manufacturing Co.Supreme Court of Missouri · 1892
- Mansur v. BottsSupreme Court of Missouri · 1883
- House v. DuncanSupreme Court of Missouri · 1872
2 more not listed; retrieve them via the Exa API.
3Cited by7 opinions
- Beebe v. the Columbia Axle Co.Missouri Court of Appeals · 1938
- Hackett v. Van FrankMissouri Court of Appeals · 1906
- B. F. Glover & Son Commission Co. v. Abilene Milling Co.Missouri Court of Appeals · 1909
- Providence Min. & Mill. Co. v. NicholsonCourt of Appeals for the Eighth Circuit · 1910
- King v. GiblinWyoming Supreme Court · 1927
2 more not listed; retrieve them via the Exa API.