Crews v. Lackland
| Decision Date | 30 April 1878 |
| Parties | CREWS v. LACKLAND et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court.--HON. GILCHRIST PORTER, Judge.
McFarlane & Trimble, Hockaday & Silver and H. C. Lackland for appellants.
Kennan & McIntyre for respondent.
Defendants, sued as partners for breach of an alleged contract in reference to the herding of cattle, denied all the allegations of the petition. Trial had, evidence conflicting, and verdict against both defendants. For plaintiff were given the following instructions: 1. The court instructs the jury, where parties to a contract differ and contradict each other in regard to terms and conditions of the contract, that the jury may take into consideration the acts and conduct of plaintiff and defendants, and all other facts and circumstances in the case, in ascertaining the true import and meaning of the contract, and that if they believe the weight of evidence in the case, taken altogether, is in favor of the plaintiff, their verdict should be in his favor. 2. If the jury believe from the evidence in the case that the defendants, or either of them, made a contract with plaintiff to take and herd for defendants two hundred or more cattle in Audrain county during the season for herding in the year 1873, and agreed to pay him therefor $2 per head, and plaintiff secured ground and water sufficient for that purpose, and stood ready to take and herd said cattle, and that defendants failed to furnish plaintiff said cattle, and that plaintiff relied upon the undertaking of defendants, and was thereby prevented from getting other cattle to herd, they must find for the plaintiff, and assess his damages at the contract price, or such other actual damage as the evidence in the case shows that the plaintiff has sustained by defendants' breach of their said contract. 3. The jury are instructed that the measure of damages is the actual damage plaintiff has sustained (if any) in the premises by reason of the defendants' breach of the contract sued on; and if they believe from the evidence that defendants contracted with the plaintiff to furnish plaintiff two hundred head of beef cattle to herd in the summer of 1873, and that plaintiff hired hands, dug ponds and rented pasture at great expense, and stood ready and willing to receive said cattle to herd for defendants, and defendants failed to furnish said cattle, then they ought to find for the plaintiff in a sum equal to the actual damage the evidence shows has accrued to plaintiff by reason of defendants' failure to keep and perform the agreement with plaintiff as entered into, and assess in plaintiff's favor a sum in dollars and cents as damages.
For defendants these instructions were given: 1. If the jury believe from the evidence in the case that the contract relied on was that plaintiff would herd the cattle of defendants only upon condition that defendants bought cattle, and that defendants failed to purchase any cattle, then the verdict should be for defendants. 2. The court instructs the jury that the burden of proof in this case is upon the plaintiff, and if they believe the evidence to be evenly balanced, the verdict should be for the defendants; so, also, unless the preponderance of evidence is in plaintiff's favor. Defendants also asked the following instruction, which was refused: 3. The defendants are sued in this action as partners, and the burden of proof on this point is upon the plaintiff, and, unless the jury are satisfied from the evidence in the case that, at the time of the alleged making of the alleged contract, the defendants were partners, then the verdict must be for the defendants.
I. At common law it is quite clear that the third instruction asked by defendants should have been given. 2 Glf. Ev., § 483; Tuttle v. Cooper, 10 Pick. 281, and cases cited; 1 Chit. Plead. 45; Kimmel v. Shultz, Breese 128; Tomlinson v. Collett, 3 Blackf. 436. In...
To continue reading
Request your trial
-
Mo. Finance Corp. v. Roos et al., 21846.
...pleaded defenses W.T. Raleigh Medical Co. v. Abernathy, 196 S.W. 1042; Franklin Bank v. St. Louis Car Co., 9 S.W. (2d) 901; Crews v. Lackland, 67 Mo. 619; Aronson v. Maryland Casualty Co., 280 S.W. 724; Themas v. American Central Ins. Co., 297 S.W. 982; Charles H. Fuller Co. v. St. Louis Wh......
-
Missouri Finance Corp. v. Roos
...pleaded defenses. W. T. Raleigh Medical Co. v. Abernathy, 196 S.W. 1042; Franklin Bank v. St. Louis Car Co., 9 S.W.2d 901; Crews v. Lackland, 67 Mo. 619; Aronson v. Maryland Casualty Co., 280 S.W. Thomas v. American Central Ins. Co., 297 S.W. 982; Charles H. Fuller Co. v. St. Louis Wholesal......
-
State ex rel. Welch v. Morrison
...finding that fact. On the evidence in this record this assumption was wrong. [Chappell v. Allen, 38 Mo. l c. 221, 222; Crews v. Lackland, 67 Mo. 619, 621, 622.] the theory of the instruction was, as already indicated, wholly different from that of the count itself. Neither the land nor its ......
-
The Gregmoore Orchard Company v. Gilmour
...v. Barada, 28 Mo. 491; Railroad v. Stock Yards, 120 Mo. 541; Mead v. Brotherhood, 30 Mo. 201; Bank v. Metcalf, 29 Mo.App. 384; Crews v. Lackland, 67 Mo. 619; v. Trust Co., 111 Mo.App. 242. J. L. Van Wormer and J. N. Burroughs for respondent. (1) It was not necessary to prove the agency of B......