Dietz v. Nix.
Missouri Court of Appeals
Appeal from the Circuit Court of the City of St. Louis. — Eon. Leo 8. Bassieur, Judge. It is submitted that it was prejudical error as against appellants to admit evidence of a special custom in boring wells- in Oklahoma. In this case no issue concerning such custom was raised by the pleadings. A special custom must be pleaded where such custom is relied upon to take the case out of the general rules of law.
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Appeal from the Circuit Court of the City of St. Louis. — Eon. Leo 8. Bassieur, Judge. It is submitted that it was prejudical error as against appellants to admit evidence of a special custom in boring wells- in Oklahoma. In this case no issue concerning such custom was raised by the pleadings. A special custom must be pleaded where such custom is relied upon to take the case out of the general rules of law. And where it is not shown (and it was not in this case) that either party, when the contract was made, relied pon the custom or usage offered to be proven, evidence of it should be…
1Opinion of the CourtAllen, J.
The petition herein is in four counts. The first count alleges that plaintiff is a resident of the State of Oklahoma, that the defendants are residents of the City of St. Louis, and that prior to July 13, 1914, defendants were engaged in prospecting for oil in Oklahoma. It is then averred that on July 3, 1914, plaintiff and defendants entered into an express contract whereby plaintiff agreed to drill a certain well for defendants in the county of Rogers, State of Oklahoma, to a" depth sufficient to reach what is commonly known as the “shallow sand” or until notified by defendants to cease…
2Cases cited15 opinions
- Bailey v. Kansas CitySupreme Court of Missouri · 1905
- Staroske v. Pulitzer Publishing Co.Supreme Court of Missouri · 1911
- Laughlin v. Kansas City Southern Railway Co.Supreme Court of Missouri · 1918
- Hammond v. BeesonSupreme Court of Missouri · 1892
- Wallace v. MorganIndiana Supreme Court · 1864
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3Cited by3 opinions
- Jordan v. DanielsMissouri Court of Appeals · 1930
- Tate v. TyzzerMissouri Court of Appeals · 1921
- City of Excelsior Springs ex rel. Fitze v. National Surety Corp.District Court, W.D. Missouri · 1939