Beck v. Ferrara

• Decision Date: 31 October 1853
• Citation: 19 Mo. 30
• Parties: BECK, Defendant in Error, v. FERRARA, Plaintiff in Error.
• Court: Missouri Supreme Court

19 Mo. 30

BECK, Defendant in Error,

v.FERRARA, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1853.

1. The petition stated that the defendant was indebted to the plaintiff for stall No. 20 in the North Market, which was purchased by the plaintiff from a third party for defendant at his special instance and request. The proof was that the plaintiff bought the stall for himself, and afterwards sold it to the defendant. Held, this was an entire failure of proof of the cause of action alleged in the petition (within the meaning of section 3 of art. 11 of the new code of practice,) and not a mere variance.

Error to St. Louis Court of Common Pleas.

Bay and Gardner, for plaintiff in error.

The court below erred in permitting evidence of the sale of the stall by Beck to Ferrara to go the jury. No such issue was made by the pleadings. Link v. Vaughn, 17 Mo. 585.

H. N. Hart, for defendant in error.

If there was any variance between the pleadings and the proof, it was not a material one under the new practice.

RYLAND, Judge, delivered the opinion of the court.

1. The only question of importance for the consideration of this court is in relation to the third item of the plaintiff's account; that is for the stall in the North Market. The petition charges as follows, after stating the first item for board and the second for hire of a horse and wagon, &c., “and for a certain stall in the North Market House, known as stall No. 20, which said stall No. 20 was purchased by said John Beck from one Hargens for the sum of five hundred dollars, for him, the said defendant and at his special instance and request; and which said sum of five hundred dollars, the price of said stall, paid by said John Beck, as aforesaid, he, the said defendant, promised to pay said John Beck, but which he has failed to do.” The account of the particulars filed has three items, the third as follows: “To stall No 20 in the North Market, purchased by John Beck, deceased, for you and at your request, from one Hargens, and for which said Beck paid five hundred dollars, and which you promised to pay, $500.

The defendant, in his answer, denies that Beck ever purchased from one Hargens a stall in the North Market House, as stall No. 20, for the sum of five hundred dollars, or any other sum, for him, the said defendant, and at his instance and request; denies that he ever requested said Beck to buy said stall for him, and denies that he ever promised to pay said Beck the sum of five hundred dollars or any other sum for said stall.

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