27 Mo.App. 336 (Mo.App. 1887), Hopper v. Vance
|Citation:||27 Mo.App. 336|
|Opinion Judge:||PHILIPS, P. J.|
|Party Name:||WILLIAM B. HOPPER, Respondent, v. JOHN R. VANCE, Appellant.|
|Attorney:||D. D. DUGGINS and SAMUEL DAVIS, for the appellant. BOYD & SEBREE, for the respondent.|
|Case Date:||October 24, 1887|
|Court:||Court of Appeals of Missouri|
APPEAL from Saline Circuit Court, HON. JOHN P. STROTHER, Judge.
Reversed and remanded.
Statement of case by the court.
This action arose in a justice's court. The statement contained two counts. The first alleged, in substance, that on the _____ day of ___________ 1883, the plaintiff was the owner of a certain fence; that the plaintiff sold said fence to the defendant, the defendant agreeing to pay him therefor, the value to be fixed by one Orr; that said Orr fixed the value at seventy-five dollars; that defendant accepted said fence, but has failed and refused to pay for the same. The second count alleges a simple sale of the fence to defendant for which defendant agreed to pay the reasonable value thereof. The plaintiff's evidence, on the trial in the circuit court, tended to show that for several years prior to the alleged contract plaintiff occupied the premises on which the fence stood as lessee under the owners of the fee; that during his tenancy he erected the fence in controversy, with the right of removing the same at the end of his tenancy. In the spring of 1883 the owners of the fee sold the same, by deed of warranty, to the defendant, notifying defendant at the time that the fence belonged to plaintiff, and that the same was not intended to be conveyed by the deed, to which defendant assented. Defendant recognized the fact of plaintiff's ownership of the fence by afterwards negotiating with him for the purchase of the same. The plaintiff's evidence further tended to show that he proposed to sell the fence to defendant, and that defendant agreed to take the same at a valuation to be put thereon by any one of three named persons; and that at least one, and probably two, of the persons so selected did value the fence at the sum of seventy-five dollars, of which fact defendant was notified. The evidence further showed that in the fall following the defendant sold and conveyed the premises to a third party, making a warranty deed without any reservation as to this fence. The defendant's evidence was to the effect that he agreed to take the fence, for a fence, to be valued by three named persons as a fence, and not for any other purpose; that said named persons never so valued the fence, and that he had no notice...
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