Faulkner v. Faulkner
Supreme Court of Missouri
Appeal from Phelps Circuit ■ Court. — Hon. Y. B. Hill, Judge. ■ This was a suit on a note, brought by J. D. Eaulkner and C. C. Bland, as executors of R. P. Eaulkner, deceased, against the same J. D. Eaulkner together with D. W. Eaulkner, H. M. Noel, Alex. Demuth and D. W. Malcolm. Before trial the suit was [dismissed as to the defendant J. D. Eaulkner. There was a judgment for plaintiff's. 1. The petition failed to state a cause of action in favor of the plaintiffs suing.
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Appeal from Phelps Circuit ■ Court. — Hon. Y. B. Hill, Judge. ■ This was a suit on a note, brought by J. D. Eaulkner and C. C. Bland, as executors of R. P. Eaulkner, deceased, against the same J. D. Eaulkner together with D. W. Eaulkner, H. M. Noel, Alex. Demuth and D. W. Malcolm. Before trial the suit was [dismissed as to the defendant J. D. Eaulkner. There was a judgment for plaintiff's. 1. The petition failed to state a cause of action in favor of the plaintiffs suing. Plaintiffs Eaulkner and Bland alleged a promise made by defendants to Bland only. This is a fatal defect. Bliss Code…
1Opinion of the Court
I
Sherwood, C. J.
The note in suit was declared on as made, executed and delivered to O. O. Bland, as one of the executors of the estate of R. P. Eaulkner; that offered in evidence in support of such allegation was, according to its terms, made and executed to J. B. Eaulkner and C. C. Bland, executors. The objection to the introduction of the note in evidence was consequently well taken, and should have prevailed. This is not a case of mere statutory variance, such as may be cured by failure to make the requisite affidavit, but a failure of proof in a vital particular ; the allegation of one…
2Cases cited10 opinions
- Waldhier v. Hannibal & St. Joseph RailroadSupreme Court of Missouri · 1880
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- Cahn v. DuttonSupreme Court of Missouri · 1875
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