Legal Opinion

Samuel v. Brush

Supreme Court of Missouri

Decided March 15, 1848PublishedCited by 1 opinion

ERROR to St. Louis Circuit Court. Statement of the G.ase. This was an action on Covenant, brought by Brush against Treat, on a covenant to pay rent, and the declaration contained a general averment of performance on the part of the plaintiff. The pleas were, 1st, non est factum, and, 2d, a direct denial of performance on the part of the plaintiff.

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ERROR to St. Louis Circuit Court. Statement of the G.ase. This was an action on Covenant, brought by Brush against Treat, on a covenant to pay rent, and the declaration contained a general averment of performance on the part of the plaintiff. The pleas were, 1st, non est factum, and, 2d, a direct denial of performance on the part of the plaintiff. On the trial, plaintiff offered to read to the jury a lease from Brush to Treat; the defendant objected, and stated his objection to the court, to-wit, that the lease offered in evidence was a different one from the lease alleged; that the lease…

1Opinion of the CourtMcBride, J.

Two questions are presented by the record : First, whether a failure to set out in the declaration, a dependent covenant, is such a variance, as would upon the trial, subject the plaintiff to a non suit? Second, whether the omission can be taken advantage of under the plea of non est factum, ?

It is a principle in pleading, that the plaintiff must in his declaration, truly set out his case according to its legal effect, stating so much of the items of the contract, beneficial to him, as constitutes the point ior the failure of which he sues. It is not necessary to set out in the declaration,…

2Cited by1 opinion

  1. Clarkson v. BuchananSupreme Court of Missouri · 1873

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