Deickman v. McCormick

• Decision Date: 31 March 1857
• Citation: 24 Mo. 596
• Parties: DEICKMAN, Plaintiff in Error, v. MCCORMICK, Defendant in Error.
• Court: Missouri Supreme Court

24 Mo. 596

DEICKMAN, Plaintiff in Error,

v.MCCORMICK, Defendant in Error.

Supreme Court of Missouri.

March Term, 1857.

1. A petition alleged that the plaintiff and defendant “jointly leased” certain premises of one A., and that the defendant collected the rents and failed to account to plaintiff for his share, one-half, of said rents. Upon the trial plaintiff offered in evidence a lease of said premises from a third person to said A., and an assignment by A. to plaintiff and defendant. Held, that this was a variance, and that the court might properly refuse to receive the assignment in evidence, unless the plaintiff would amend his petition so as to correspond with the proof.

Error to St. Louis Law Commissioners' Court.

Woods and Buckner, for plaintiff in error.

L. M. Shreve, for defendant in error.

RYLAND, Judge, delivered the opinion of the court.

The plaintiff states in his petition that defendant and himself jointly leased of Hunter and Burrows a certain lot in the city of St. Louis, which he describes in his petition; and that defendant collected the rents, one-half of which were due plaintiff; and that defendant refused to pay the same to plaintiff, although often requested. The answer of defendant denies that the plaintiff and defendant jointly leased of Hunter and Burrows a lot of ground described in plaintiff's petition, and denies that plaintiff's interest is one-half of the rents and profits of the property described in said petition; denies that half of the rent is one hundred and fifty dollars. Defendant says that he has never received any rents and profits of property leased from Hunter and Burrows; but says he has received rents, but not from that source referred to, of which plaintiff is entitled to the sum of $116.67; but that he has laid out and expended about said property, for which plaintiff is liable, the sum of $174.90, leaving a balance due defendant of fifty-eight dollars and twenty-two and a half cents; and files an account as an exhibit showing the particulars of the set-off.

The plaintiff replied, denying the justness and correctness of the defendant's set-off. At the trial the plaintiff offered a lease from John Biddle to Thomas Hunter, and an assignment or sale of the lease by Hunter to the plaintiff and defendant. The lease may be for part of the same lot described in plaintiff's petition. The lot mentioned in the lease is said to be thirty-two feet seven inches front on Sixth street. The lot in the petition is stated to be thirty-seven and a half feet front on Sixth street; the other boundaries agree.

The defendant objected to the lease and also to the assignment being given in evidence. The court permitted the lease to be read to the jury, but sustained the objection to the assignment, and excluded it upon the ground that said assignment was not relevant to any issue in the case. The court then informed the plaintiff's counsel that he was at liberty to amend his petition, so as to correspond with the proof offered, to-wit: the assignment of said lease, which he refused to do, but excepted to the ruling of the court in excluding said testimony.

The plaintiff then introduced Mr. Hunter as a witness, and asked him if he and one Burrows did not lease the property, mentioned and described in the lease, to the plaintiff and defendant. He answered: “No, we did not lease it to them; we sold the lease to them; the sale was in writing.” The witness identified the assignment offered in evidence as the sale to which he referred. The court refused to permit the witness to testify concerning the contents of the assignment, to which the plaintiff at the time excepted. The witness further testified that the possession of the premises described in the lease was delivered to the parties. The plaintiff then introduced Mrs. Kelly, and offered to prove by her that she had paid rent to the defendant for the premises mentioned in the petition and within the time mentioned therein, but the court refused to permit such evidence, unless the plaintiff would amend his petition in the particular above mentioned; plaintiff refused so to amend, and the court refused to proceed further with the trial, and the...