10 Mo.App. 226 (Mo.App. 1881), Goodger v. Finn

Citation:10 Mo.App. 226
Opinion Judge:BAKEWELL, J.
Party Name:WILLAM H. GOODGER ET AL., Defendants in Error, v. JOHN FINN, Plaintiff in Error.
Attorney:H. E. MILLS, for the plaintiff in error: JOHN A. HARRISON and B. R. DAVENPORT, for the defendants in error:
Case Date:April 12, 1881
Court:Court of Appeals of Missouri
 
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Page 226

10 Mo.App. 226 (Mo.App. 1881)

WILLAM H. GOODGER ET AL., Defendants in Error,

v.

JOHN FINN, Plaintiff in Error.

Court of Appeals of Missouri, St. Louis.

April 12, 1881

1. Bringing suit in assumpsit before notice of facts warranting a rescission, is not conclusive of an election to affirm, except where the rights of innocent third parties have intervened; and attaching creditors do not come within this exception.

2. Where an instruction is offered, and is modified and changed by the court and then given, the instruction asked is refused, and the record should show that fact: the appellate court will not regard marginal statements that such change or modification was made by interlineation.

3. If the defendant desires to save the point raised by his demurrer to evidence, he must stand upon his demurrer; by proceeding further with the case and submitting it to a jury, he waives the point.

4. An assignee of property converted and of the right of action therefor, may maintain an action for the property and for damages, in his own name.

5. Where parties have gone to trial on issues clearly made by the instructions, and there is no claim of surprise, the appellate courts will not look into the paper issues, if the petition will support the judgment.

ERROR to the St. Louis Circuit Court, WICKHAM, J.

Affirmed.

H. E. MILLS, for the plaintiff in error: To recover upon an issue of fraud, or of rescission, these facts must be clearly pleaded.-- Schultz v. Christman, 6 Mo.App. 344; Duffy v. Byrne, 7 Mo.App. 7; Kenney v. Jones, 50 Mo. 316; Wells v. Jewett, 11 How. Pr. 242; Fox v. Webster, 46 Mo. 184. Attachment and replevin cannot be maintained at the same time.-- Seligman v. Kalkman, 8 Cal. 207. The suit in attachment was an affirmance of the sale.-- Gray v. St. John, 35 Ill. 239. And lost to the vendor his right to rescind.-- Brinley v. Tibbetts, 7 Me. 70; Hoffman v. Noble, 6 Metc. 74. An action in assumpsit is an affirmance of the contract.-- Strutt v. Smith, 1 Cromp. M. & R. 312; Bradbury v. Aderton, 1 Cromp. M. & R. 482; Allen v. Ford, 19 Pick. 217; Butler v. Hildreth, 5 Metc. 49. Having thus affirmed the contract, the vendor cannot reclaim the goods.-- Bank v. Beale, 34 N.Y. 475; Lloyd v. Brewster, 4 Paige 537; Jenkins v. Simpson, 14 Me. 364; Westfall v. Peacock, 63 Barb. 209; Morris v. Rexford, 18 N.Y. 556; Kennedy v. Thorp, 51 N.Y. 174.

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