Smith v. Means
Missouri Court of Appeals
Appeal from Jasper Circuit Court. Division Number One. — Hon. Joseph D. Perkins, Judge. (1) Tbe court erred in not requiring plaintiff to elect on wbat theory be would try tbe case, either as an action for damages for fraud and deceit, or for rescission Jof contract, or for breach of warranty. Barnett v. Nolte, 55 .Mo. App. 184; Bank v. Umratb, 42 Mo. App. 528. (2) Tbe plaintiff must recover, if at all, on tbe cause of action stated in bis petition.
Read the full summary
Appeal from Jasper Circuit Court. Division Number One. — Hon. Joseph D. Perkins, Judge. (1) Tbe court erred in not requiring plaintiff to elect on wbat theory be would try tbe case, either as an action for damages for fraud and deceit, or for rescission Jof contract, or for breach of warranty. Barnett v. Nolte, 55 .Mo. App. 184; Bank v. Umratb, 42 Mo. App. 528. (2) Tbe plaintiff must recover, if at all, on tbe cause of action stated in bis petition. He cannot sue upon one cause of action and recover upon another. Wright v. Fonda, 44 Mo. App. 642. (3) Tbe court erred in permitting the…
1Opinion of the Court
OPINION.
FARRINGTON, J.
(after stating the facts).— Appellant’s first contention is that “the court erred in not requiring plaintiff to elect on what theory he would try the case, either as an action for damages for fraud and deceit, or for rescission of contract, or for breach of warranty.”
The petition in this case states facts which would entitle the plaintiff to recover damages for a breach of warranty, or for fraud and deceit, or for a rescission of the contract and a return of the purchase price with damages. It does state a good cause of action for the rescission of the contract based on…
2Cases cited8 opinions
- Brown v. WeldonSupreme Court of Missouri · 1889
- Deichmann v. DeichmannSupreme Court of Missouri · 1871
- Mann v. DoerrSupreme Court of Missouri · 1909
- Crenshaw v. LookerSupreme Court of Missouri · 1904
- Laswell v. National Handle Co.Missouri Court of Appeals · 1910
3 more not listed; retrieve them via the Exa API.
3Cited by4 opinions
- Citizens State Bank of Nevada v. WalesMissouri Court of Appeals · 1971
- Ramsey v. Farmers Mutual InsuranceMissouri Court of Appeals · 1940
- Lowry v. Northwestern Savings & Loan Ass'nMissouri Court of Appeals · 1976
- Ritchie v. Metropolitan Life InsuranceSupreme Court of Kansas · 1937