Mann v. Weiss
Missouri Court of Appeals
Appeal from St. Louis City Circuit Court. — lion. . George H. Shields, Judge. (1) The demurrer to the evidence offered by defendants at the close of plaintiff’s case should have been sustained, for there was a total failure of proof by plaintiff of the cause of action pleaded in his petition. (a) The proof must conform with the pleading; a party cannot declare on one cause of action and recover on another.
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Appeal from St. Louis City Circuit Court. — lion. . George H. Shields, Judge. (1) The demurrer to the evidence offered by defendants at the close of plaintiff’s case should have been sustained, for there was a total failure of proof by plaintiff of the cause of action pleaded in his petition. (a) The proof must conform with the pleading; a party cannot declare on one cause of action and recover on another. And where the petition is for the wrongful conversion of property and the proof establishes a different cause of action, there is a failure of proof of the cause of action pleaded, and…
1Opinion of the CourtReynolds, P. J.
The petition in this case is in the usual form, in tort to recover damages for unlawful conversion by defendants of a diamond ring, alleged to be the property of plaintiff and of the value of $700. The answer was a general denial. The cause was tried before the court and a jury. At the close of plaintiff’s evidence in the case defendants demurred, on the ground of a total failure of proof. The court refused the demurrer, plaintiff excepting. The jury, after being instructed by the court, returned a verdict in favor of plaintiff, assessing damages at $500, from which defendants have duly…
2Cases cited4 opinions
- Cook v. Globe Printing Co.Supreme Court of Missouri · 1910
- Wilkinson v. MisnerMissouri Court of Appeals · 1911
- Franklin v. St. Louis & Meramec River RailroadSupreme Court of Missouri · 1905
- Donijanovic v. HartmanMissouri Court of Appeals · 1912
3Cited by1 opinion
- State v. EverhartSupreme Court of Missouri · 1926