Easley v. Prewitt
Supreme Court of Missouri
Error to Linn Circuit Court. The petition sot forth a contract made with plaintiff by defendants for the building of a church, alleged the performance of the contract, the acceptance of the work, and the amount due thereon; and then alleged, that more than three months before the commencement of this action, he gave the said defendants notice in writing that he would proceed to enforce his lien, by the sale of said church property, as is provided in said contract heretofore…
Read the full summary
Error to Linn Circuit Court. The petition sot forth a contract made with plaintiff by defendants for the building of a church, alleged the performance of the contract, the acceptance of the work, and the amount due thereon; and then alleged, that more than three months before the commencement of this action, he gave the said defendants notice in writing that he would proceed to enforce his lien, by the sale of said church property, as is provided in said contract heretofore mentioned, for the purpose of paying the balance due and owing him for the building of said church. 'Wherefore plaintiff…
1Opinion of the CourtWagner, Judge
The demurrer in this case was improperly sustained. A petition is not demurrable because it asks a judgment not *363warranted by the averments ; nor is its character always determined by the relief it prays for. The court may grant any relief consistent with the case made and embraced within the issues. (R. C. 1855, p. 1280, § 12; Northcraft v. Martin, 28 Mo. 469.) The petition stated a good cause of action on the agreement; but if the plaintiff wishes to foreclose his lien on the building, he ought to amend his petition,and set out the condition and the breach.
The judgment will be reversed and…
2Cases cited1 opinion
- Northcraft v. MartinSupreme Court of Missouri · 1859
3Cited by4 opinions
- Comings v. Hannibal & Central Missoum RailroadSupreme Court of Missouri · 1871
- Baker v. Missouri Pacific Railway Co.Missouri Court of Appeals · 1889
- City of Pilot Grove v. McCormickMissouri Court of Appeals · 1894
- Carthage National Bank v. PooleMissouri Court of Appeals · 1911