Legal Opinion

Breen v. N. K. Fairbank & Co.

Missouri Court of Appeals

Decided March 19, 1889Published

Appeal from the St. Louis City Circuit Court. — IIon. Shepard Barclay, Judge. After the respondent had closed his case the appellant asked the court below to give the following instruction to the jury, to-wit: “ The court instructs the jury that under the pleadings and evidence in this case plaintiff cannot recover a sum beyond nominal damages.”

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Appeal from the St. Louis City Circuit Court. — IIon. Shepard Barclay, Judge. After the respondent had closed his case the appellant asked the court below to give the following instruction to the jury, to-wit: “ The court instructs the jury that under the pleadings and evidence in this case plaintiff cannot recover a sum beyond nominal damages.” The court below refused to act or rule upon this instruction at that stage of the trial, and we submit that the court committed error in said refusal. After the respondent had closed his case the appellant was entitled, as a matter of right, to have…

1Opinion of the Court

Rombaujsk, P. J.,

court.

delivered the opinion of the

For the purpose of considering the questions presented by this appeal, we assume that the proof substantiates the following facts stated in plaintiff’s petition.

In February, 1886, the plaintiff, a teamster, agreed with the defendant, a merchant, to furnish a horse, wagon and driver for the purpose of peddling the defendant’s merchandise, for the period of one year from and after that date, the defendant agreeing to pay him three dollars and fifty cents per day, for each working day during the entire period. As part of the contract, the…

2Cases cited7 opinions

  1. Devlin v. Mayor of New YorkNew York Court of Appeals · 1875
  2. Clark's v. HannibalSupreme Court of Missouri · 1865
  3. Pond v. WymanSupreme Court of Missouri · 1851
  4. Miller v. Woolman-Todd Boot & Shoe Co.Missouri Court of Appeals · 1887
  5. Vastine v. WildingSupreme Court of Missouri · 1869

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