Hollfield v. Black
Missouri Court of Appeals
Appeal from the Mississippi County Circuit Cour^ J. D. Foster, Judge. The petition •contains two distinct and independent causes of action, improperly united and commingled in one count. Bev. ,Stat., sect. 3512; Mooney v. Kennest, 19 Mo. 551; Mulholland v. Rapp, 50 Mo. 42. There is a material and fatal variance between the contract declared upon in the petition, and the contract offered in evidence.
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Appeal from the Mississippi County Circuit Cour^ J. D. Foster, Judge. The petition •contains two distinct and independent causes of action, improperly united and commingled in one count. Bev. ,Stat., sect. 3512; Mooney v. Kennest, 19 Mo. 551; Mulholland v. Rapp, 50 Mo. 42. There is a material and fatal variance between the contract declared upon in the petition, and the contract offered in evidence. Franklin v. Globe Mutual Insurance Company, 52 Mo. 461; Harris v. Railroad Go., 37 Mo. 307; Steph. PL 84, 8th Am. Ed.; Huston v. Forsyth Beale Works, 56 Mo. 416. • The first instruction declares…
1Opinion of the CourtBombauer, J.
This is an action to recover damages for breach of a contract of sale, concerning twevle hundred bushels of Irish potatoes. The damages claimed are $334.40, and the trial below, before a jury, resulted in a verdict and judgment for the plaintiff, for $283.80. From this judgment the defendant appeals.
*330The errors assigned, and mainly urged for reversal, are: 1. That the court refused to compel the xilaintiff to elect between two causes of action, improperly joined in the same count. 2. That there was an entire failure oí Xiroof. 3. That the court admitted illegal testimony. 4. That the court…
2Cases cited3 opinions
- Livermore & Cooley v. Eddy's AdministratorSupreme Court of Missouri · 1863
- Gaul v. WengerSupreme Court of Missouri · 1854
- Wetherell v. PattersonSupreme Court of Missouri · 1862
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