11 S.W. 48 (Mo. 1889), Morrow v. Surber
|Citation:||11 S.W. 48, 97 Mo. 155|
|Opinion Judge:||Ray, C. J.|
|Party Name:||Morrow, Treasurer, v. Surber, Appellant|
|Attorney:||Dysart & Mitchell for appellant. Sears & Guthrie with Eli J. Newton for respondent.|
|Case Date:||February 18, 1889|
|Court:||Supreme Court of Missouri|
Appeal from Macon Circuit Court. -- Hon. Andrew Ellison, Judge.
(1) This was an action against Surber and Walker to recover back money obtained by them from the plaintiff by fraud and deceit. It is an action of tort. Plaintiff must recover, if at all, upon the cause of action stated in his petition. He cannot allege one cause and recover on another. Here was not simply a variance, but an utter failure of proof to sustain the allegations of the petition, and plaintiff could not recover, at least, without amending his petition; and hence the instruction given for plaintiff should have been refused. Harris v. Railroad, 37 Mo. 307; Ensworth v. Barton, 60 Mo. 511; Clements v. Yates, 69 Mo. 623. (2) The court instructed for plaintiff that he could recover as against Surber, if other warrants were registered and unpaid prior to that of defendant, "if the evidence shows the plaintiff has tendered to defendant his warrant." There was no evidence that plaintiff ever tendered to defendant his warrant. It ceased to be a warrant after it was cancelled by the treasurer. It was functus officio. And proof that it was tendered to defendant in its mutilated and cancelled condition was no proof that "plaintiff has tendered to defendant his warrant." The second and third instructions asked for by the defendants should have been given in connection with the proviso contained in the plaintiff's instruction. R. S. secs. 5411, 5412, 5413, 5414. Plaintiff did not offer to place the defendant in statu quo, but seeks to recover the money without leaving with defendant any valid evidence of his claim on said fund. (3) Defendant's first instruction should have been given as asked. The act of 1865, under which these bonds were issued, make no provision for the exchange of warrants for the bonds, and makes no provision for the registration of either bonds or warrants.
(1) Appellant's position, that the court erred in finding the issues for plaintiff, is not sustained by the pleadings, or the evidence. The petition in the cause alleges that the money was paid by mistake, and by representations that were not true he obtained the money. (2) Appellant's position, as shown by his answer and instructions, is that the statutory provisions relative to issue, registration, and payment of warrants have no relation or application to such a case as this. R. S. 1879, secs. 5370, 5371. (3) If the position of the appellant be correct, why surrender his bonds and coupons, and...
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