Moffatt v. Conklin

Citation35 Mo. 453
PartiesT. J. MOFFATT, Respondent, v. A. A. CONKLIN et al., Appellants.
Decision Date28 February 1865
CourtUnited States State Supreme Court of Missouri

Appeal from Livingston Circuit Court.

S. Turner and A. M. Woolfolk, for appellants.

I. The court erred in granting the instruction of plaintiff. By this instruction the plaintiff sought to recover on a cause of action different from the one stated in his petition. The cause of action stated in the petition was that appellants had first rescinded the written contract with Armstrong & Bent, and then, falsely and fraudulently representing to respondent that it was still in force, had induced him to pay $600 thereon. The instruction abandons this cause of action, and, no longer relying upon fraudulent misrepresentation as a ground of action, seeks to recover not because any fraud had been practised upon him, or the written contract with Armstrong & Bent had been rescinded before the conditional sale to him, but because it was rescinded after such conditional sale, and after the written contract had again come into the possession and control of the appellants, by virtue of their agreement with him at the time of said conditional sale. (17 Mo. 586; 15 Mo. 271; 18 Mo. 140; 7 Cranch, 208; 6 Johnson, 560; 19 Johnson, 405.)

II. The instruction of respondent also excluded from the consideration of the jury questions raised by the evidence of appellants, and left no questions of fact to be determined by them. (27 Mo. 55.) Under this instruction the jury were simply permitted to compute the interest on respondent's demand, and this instruction excluded from their consideration all the varied questions arising under the law of forfeiture--penalty and liquidated damages--which were suggested by the evidence in this case. The instruction of respondent did not present the law correctly. (10 Barb., N. Y., 59; 22 Wend. 201; 26 Wend. 630; 11 Barb. 128; Sedg. Dam. 425, n., t.)

Madison & Jones, for respondent.

Under the pleadings it was not necessary for plaintiff to prove the declarations made by appellants, when the contract was assigned or before. It was enough for him to show that the $600 had been fraudulently obtained by appellants. (12 Mo. 517; 7 Mo. 245; Chit. on Contr. 682; 1 Bouv. Inst. 227-28.) There is no evidence that the $600 paid by respondent was to be taken as the amount of damages liquidated in case of respondent's failure to pay the other $700, nor is there any such defense set up in the answer. The appellants, in their answer, make no claims for damages or recoupment, &c.

DRYDEN, Judge, delivered the opinion of the court.

In this record, one case is made by the pleadings, and another and radically different case by the instructions. That made by the pleadings is as follows, viz: In October or November, 1863, one Armstrong, for a sufficient consideration, contracted in writing to deliver to the Conklins (appellants) 1500 head of corn-fatted hogs on the Hannibal and St. Joe railroad, in the months of November and December, 1863, and January, 1864. The petition avers that prior to the 23d of November, 1863, the said contract was rescinded by the parties to it, and Armstrong, the obligor, released from its obligations; and “that afterwards, on or about the 23d day of November, 1863, the defendants (Conklins) falsely and fraudulently represented to plaintiff (Moffatt) that such agreement was still a valid and subsisting agreement; and the plaintiff relying upon such false and fraudulent representations, so made by defendants, was thereby induced by defendants to pay them six hundred dollars for the pretended rights of defendants in, and to, and under, such agreement.”

It was alleged that by means of the premises the plaintiff had sustained $700 damages, and judgment therefor was demanded. All the material allegations of the petition are denied by the answer.

On the trial, a contract for the delivery of hogs by Armstrong to the Conklins, such as that described in the petition, was produced and read in evidence; the plaintiff gave further evidence to show that on or about the 23d of November, 1863, the plaintiff paid to the defendants (the Conklins) the sum of $600, and that...

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