Darks v. Scudder-Gale Grocer Co.
Missouri Court of Appeals
Appeal from St. Louis City Circuit Court. — Eon. Virgil Rule, Judge. (1) There was a fatal variance between the allegations and the proof in that the petition alleged the case in tort, whereas the proof showed nothing more than a breach of warranty (express or implied). Glenn v. Hill, 210 Mo. 299. (2) The court erred in giving the first instruction for plaintiffs. Brown v. Marshall, 47 Mich. 576; Akers v. Over beck, 18 Miss. 198; Howes v. Rose, 13 Ind.
Read the full summary
Appeal from St. Louis City Circuit Court. — Eon. Virgil Rule, Judge. (1) There was a fatal variance between the allegations and the proof in that the petition alleged the case in tort, whereas the proof showed nothing more than a breach of warranty (express or implied). Glenn v. Hill, 210 Mo. 299. (2) The court erred in giving the first instruction for plaintiffs. Brown v. Marshall, 47 Mich. 576; Akers v. Over beck, 18 Miss. 198; Howes v. Rose, 13 Ind. App. 674; Hackett v. Pratt, 52 111. App. 346; Thompson on Negligence, sec. 827; Clement v. Crosby & Co., Ill' N. W. 745; Gould v. Woolen Co.,…
1Opinion of the CourtGray, J.
The plaintiffs are the widow and minor children of Roscoe C. Darks, deceased, who lived and died at Wetumka, Oklahoma, where, during his lifetime, he conducted a general merchandise and grocer business in partnership with one Williams, under the firm name of Williams and Darks. The defendant is engaged in the wholesale grocer business at St. Louis. E. W. Rizer, at the times hereinafter mentioned, was doing business at Muskogee, Oklahoma, as a merchandise broker, and under the name of E. W. Rizer & Co. Mr. Rizer, as such broker, had from time to time sold goods for the defendant as an ordinary…
2Cases cited40 opinions
- Northern Pacific Railroad v. BabcockSupreme Court of the United States · 1894
- Huset v. J. I. Case Threshing Mach. Co.Court of Appeals for the Eighth Circuit · 1903
- Colegrove v. New York & New Haven RailroadNew York Court of Appeals · 1859
- Judd v. WalkerSupreme Court of Missouri · 1908
- Norton v. SewallMassachusetts Supreme Judicial Court · 1870
35 more not listed; retrieve them via the Exa API.
3Cited by24 opinions
- Mary Ann Waynick v. Chicago's Last Department Store, an Illinois CorporationCourt of Appeals for the Seventh Circuit · 1959
- Tietjens v. General Motors CorporationSupreme Court of Missouri · 1967
- Napier v. StrongCourt of Appeals of Georgia · 1917
- Freeman v. BerberichSupreme Court of Missouri · 1933
- Carroll v. United Railways Co.Missouri Court of Appeals · 1911
19 more not listed; retrieve them via the Exa API.