Cummings v. Mastin
Missouri Court of Appeals
Appeal from the Jackson Circuit Court. — Hon. J. H. Slover, Judge. (1) If on the trial the plaintiff had proven all of these allegations, he would have made precisely the same case as is held insufficient to support a judgment in Rey v. Tony, 24 Mo. 600. Since the plaintiff cannot be held to prove more than he alleges, the petition does not contain facts sufficient to constitute a cause of action.
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Appeal from the Jackson Circuit Court. — Hon. J. H. Slover, Judge. (1) If on the trial the plaintiff had proven all of these allegations, he would have made precisely the same case as is held insufficient to support a judgment in Rey v. Tony, 24 Mo. 600. Since the plaintiff cannot be held to prove more than he alleges, the petition does not contain facts sufficient to constitute a cause of action. (2) The petition is defective in that it does not allege either that the defendant convérted plaintiff’s horses to his own use, or that he lost them through negligence. In the absence of one or the,…
1Opinion of the CourtEllison, J.
Defendant was an agister of cattle. Plaintiff delivered to him a horse and a mare to be pastured for compensation. Defendant refused to deliver *560on demand and was sued for the value of the animals. He recovered, and defendant appeals.
The case is before us merely on the question whether a cause of action is stated in the petition.
' The petition alleges the business of defendant; the delivery and acceptance of the animals ; the tender of price of pasturage and a demand and refusal to deliver. The objection is that the petition should have alleged negligence, general or special, on the part of…
2Cases cited4 opinions
- McCarthy v. WolfeSupreme Court of Missouri · 1867
- Goodfellow's Executors v. MeeganSupreme Court of Missouri · 1862
- Winston v. TaylorSupreme Court of Missouri · 1859
- Rey v. ToneySupreme Court of Missouri · 1857
3Cited by3 opinions
- Thummel v. KrewsonMissouri Court of Appeals · 1989
- Crawford v. Cashman & SonMissouri Court of Appeals · 1900
- Dixon v. McDonnellMissouri Court of Appeals · 1902