Auchincloss v. Frank
| Decision Date | 17 March 1885 |
| Citation | 17 Mo.App. 41 |
| Parties | HUGH AUCHINCLOSS ET AL., Respondents, v. JACOB FRANK ET AL., Appellants. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, HORNER, J.
Reversed nisi.
EBER PEACOCK and R. H. KERN, for the appellants.
TRUMAN A. POST and HENRY M. POST, for the respondents.
The plaintiffs sue as assignees of an open account in favor of Bates & Auchincloss, for 900 dozen spools of Coats' cotton thread, sold to the defendants at fifty-five cents per dozen, amounting to $440. The answer admits the purchase, as to quantity and dates, as stated in the petition, but denies that the price is truly stated, or that the defendants are indebted in the amount claimed. It is averred that, by agreement with Bates & Auchincloss, the defendants were entitled to certain rebates amounting to $190.47, which sum being deducted from $440 leaves a balance of $249.53, and that this last mentioned sum they have paid to the plaintiffs. The plaintiffs replied with a general denial, and further alleged that, by an agreement made between their assignors and the defendants, the trade price in all sales of the thread was to be fifty-five cents per dozen spools, and that the defendants were to allow purchasers no deductions by way of discount or otherwise, greater than two per cent. from said trade price. That certain bonuses and rebates were to be allowed the defendants, solely upon their strict adherence to the stipulation just mentioned; failing which, the defendants would forfeit all claim to such bonuses or rebates. That the defendants did in fact violate said stipulation, by selling the said thread at prices less than that agreed upon, and were therefore not entitled to any deduction from the price of their several purchases. There was substantial testimony tending to prove the allegations on either side. It appeared that the defendants remitted to the plaintiffs the sum of $249.53, but the plaintiffs returned the same refusing to receive it as in satisfaction of their demand. The verdict was for the plaintiffs. It is argued for the defendants that the plaintiffs' reply constitutes a departure, and that the plaintiffs cannot recover, because they did not sue upon the entire contract thus disclosed. There is nothing in the point. The reply does not set up a new cause of action, but only goes to nullify the affirmative defense set up in the answer. The suit remains upon the cause of action alleged in the petition. The alleged qualifying contract is set up by the defendants, and the plaintiffs respond that the defendants can claim nothing on that account, because of their own violation of its terms. No recovery is asked for on the contract.
The answer, after the admissions and denials before stated, adds that the defendants “deny the other allegations of the petition.” The court instructed the jury “that the assignment of the account in controversy from Messrs. Bates & Auchincloss...
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...RSMo 1949, V.A.M.S.; Brown v. Adams Transfer & Storage Co., Mo.App., 31 S.W.2d 117; Huth v. Picotte, Mo.App., 154 S.W.2d 382; Auchincloss v. Frank, 17 Mo.App. 41. Second, we are doubtful if the answer pleaded an easement appurtenant, and we are certain that defendants did not try their case......
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...result of the trustee's sale; a proper procedure unless the agreement was a contract which was substituted for the covenants. [Auchincloss v. Frank, 17 Mo.App. 41; Co. v. Lackawana Line, 70 Mo.App. 274.] If the agreement stands in the way of plaintiff's maintaining an action on the covenant......
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...result of the trustee's sale; a proper procedure unless the agreement was a contract which was substituted for the covenants. Auchincloss v. Frank, 17 Mo. App. 41; Chemical Co. v. Lackawanna Line, 70 Mo. App. 274. If the agreement stands in the way of plaintiff's maintaining an action on th......
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Auchincloss v. Frank
...17 Mo.App. 41 HUGH AUCHINCLOSS ET AL., Respondents, v. JACOB FRANK ET AL., Appellants. Court of Appeals of Missouri, St. Louis.March 17, APPEAL from the St. Louis Circuit Court, HORNER, J. Reversed nisi. EBER PEACOCK and R. H. KERN, for the appellants. TRUMAN A. POST and HENRY M. POST, for ......