2 Mo.App. 247 (Mo.App. 1876), Stone v. Wendover

Citation:2 Mo.App. 247
Opinion Judge:LEWIS, J.
Party Name:JOHN D. STONE, Respondent, v. J. K. WENDOVER, Administrator of WILLIAM F. STACEY, Appellant.
Attorney:Dryden & Dryden, for appellant, Wm. Patrick, C. G. Drummond, and Krum & Madill, for respondent,
Case Date:May 16, 1876
Court:Court of Appeals of Missouri

Page 247

2 Mo.App. 247 (Mo.App. 1876)

JOHN D. STONE, Respondent,

v.

J. K. WENDOVER, Administrator of WILLIAM F. STACEY, Appellant.

Court of Appeals of Missouri, St. Louis.

May 16, 1876

1. In an action on covenant it is sufficient if the words used in the petition, either in their expressed intent or by necessary implication, show that a breach has been committed.

2. The rule of evidence that a condition of things once shown to exist will be presumed to continue until the contrary appear may be equally applicable to a pleading, where the fact stated is in its nature continuous, and no limitation of time is suggested. In any event, no objection of the contrary can be entertained after a verdict which could not have been rendered unless the fact of continuance had been sufficiently shown.

3. In a petition charging different violations of the same contract, in separate counts, it is unnecessary to repeat, in every count, the terms of the contract which are common to all, by way of inducement.

4. A suit by a partner against his copartner, upon a claim not founded on the plaintiff's interest in the partnership assets, but arising from a direct violation of the articles of copartnership, need not be delayed for the taking of an account of the partnership affairs.

5. A partner satisfying a judgment against himself upon an indorsement made by his copartner in violation of the articles, is entitled to reimbursement for the costs paid in such satisfaction, as well as for the amount of the judgment otherwise.

6. When there are two or more counts or demands in a petition, and the verdict is for a gross sum, the objection thereto must be made in the trial court; otherwise, it will not be noticed on appeal or writ of error.

APPEAL from St. Louis Circuit Court.

Affirmed.

Dryden & Dryden, for appellant, cited: 1 Greenl. on Ev. (7th ed.) 52, sec. 41; Wag. Stat. 1012, sec. 1; 1 Chitty's Pl. 413; Childs v. The Bank, 17 Mo. 213; Mooney v. Kennett, 19 Mo. 551; Clark v. Hannibal & St. Jo. R. R. Co., 36 Mo. 202; Brownell v. Pacific R. R. Co., 47 Mo. 239; City of St. Louis to use v. Allen, 53 Mo. 44.

Wm. Patrick, C. G. Drummond, and Krum & Madill, for respondent, cited: Ahern v. Collins, 30 Mo. 145; Schwart v. Naylor, 2 Duer 678; Richardson v. Farmer, 36 Mo. 35; Jones v. Louderman, 39 Mo. 287; Kercheval v. King, 44 Mo. 401; Hay v. Short, 49 Mo...

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