Schmidt v. Schmaelter
Supreme Court of Missouri
Appeal from St. Louis Circuit Court. I. There was a fatal variance between the pleading and proof. (2 Greenl. on Ev. 142, § 160; Edw. on Bills, 574; Cotes v. Campbell, 3 Cal. 191; Spangler v. Pugh, 21 Ill. 85.) II. Plaintiff sues on one contract and- proves another. He describes defendant Kellner as maker, and proves him as security. This is fatal. (Perry v. Barrett, 18 Mo. 140 ;Edw. on Bills and Prom. Notes, 204, § 217.) III. A judgment erroneous as to one, is so to all.
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Appeal from St. Louis Circuit Court. I. There was a fatal variance between the pleading and proof. (2 Greenl. on Ev. 142, § 160; Edw. on Bills, 574; Cotes v. Campbell, 3 Cal. 191; Spangler v. Pugh, 21 Ill. 85.) II. Plaintiff sues on one contract and- proves another. He describes defendant Kellner as maker, and proves him as security. This is fatal. (Perry v. Barrett, 18 Mo. 140 ;Edw. on Bills and Prom. Notes, 204, § 217.) III. A judgment erroneous as to one, is so to all. (Covenant Mutual Life Ins. Co. v. Clover, 36 Mo. 392; Cates v. Nickell, 42 Mo. 168.) cited Powell et al. v. Thomas, 7 Mo.…
1Opinion of the CourtCurrier, Judge
The plaintiff sued Caspar Schmaelter, Adam Diefenbach, and John Kellner as the makers of a negotiable promissory note, which was alleged to be lost. The proof was that the firm of Michael Diefenbach & Co. and John Kellner made the note, and that Caspar Schmaelter and Adam Diefenbach were members of the firm. The defendants insist that the proof was totally variant from the allegations, amounting to a total failure of proof. Granting that the note was defectively described, the defect did not amount to a misdescription. The description was good as far as it went. The proof shows that the…
2Cases cited2 opinions
- Perry v. BarretSupreme Court of Missouri · 1853
- Buchner v. LiebigSupreme Court of Missouri · 1866
3Cited by6 opinions
- State v. HillNebraska Supreme Court · 1896
- State Bank of Fisk v. Omega Electronics, Inc.Missouri Court of Appeals · 1982
- Linton v. Chestnutt-Gibbons Grocer Co.Supreme Court of Oklahoma · 1911
- Salisbury v. First National BankNebraska Supreme Court · 1893
- Stephens v. BowlesMissouri Court of Appeals · 1918
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