Henslee v. Cannefax
| Decision Date | 31 January 1872 |
| Citation | 49 Mo. 295 |
| Parties | W. B. HENSLEE, Appellant, v. CHESLY CANNEFAX et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Greene Court of Common Pleas.
J. S. Phelps and T. A. Sherwood, for appellant.
J. P. Ellis, for respondents.
From the medley sent up called a record, I gather that the defendants executed to one McKay, in part payment for a jack, a non-negotiable promissory note for $500; that the plaintiff purchased the same and brought the suit, and that the defendants charged a warranty of the jack, and set up its breach as a defense to the note. McKay seems to have brought the jack from Tennessee and to have taken the note back with him; and the plaintiff being about to come to Missouri, offered to sell it to him. But before purchasing, the plaintiff wrote to his father, residing near the defendants, to inquire if the note would be paid, and his father called upon Horton, one of the defendants, who spoke highly of the jack, and informed him that the note would be paid when due, and that he might safely buy it. This being reported to the plaintiff, he purchased the note at its face; but on presenting it when due, the makers refused payment, claiming that the jack was older than represented, etc.
Upon the trial the court charged the jury that none of the defendants could be bound by the declarations of Horton except himself. This instruction was wrong for the reason that the defendants were partners in the purchase and use of the jack; they were engaged in a joint venture for their mutual profit, and the admissions and declarations of one of the partners touching a partnership transaction bound the whole. (Sto. Part., § 107.) This representation in regard to the note and its consideration, and the encouragement to purchase it, should bind all, and estop them from disputing its validity; otherwise a fraud would be perpetrated upon the plaintiff.
It seems to have been discovered, before the case was submitted to the jury, that no reply had been filed to the answer to the last amended petition. The whole matter in controversy had been fully investigated, many witnesses had been examined upon all the questions supposed to be involved, and yet the court instructed the jury that the allegations of new matter in the answer must be taken by them as true for want of replication. We think, under the circumstances, this instruction should not have been given. The parties had concluded the trial precisely as though the reply had been made; it was apparently omitted by mistake, and the court should either have given the case to the jury upon the pleadings as they had...
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College v. Dockery
...the losing party cannot raise the objection in the appellate court that the issue was not properly presented in the pleadings. [Henslee v. Cannefax, 49 Mo. 295; Meader v. Malcolm, 78 Mo. 550; Heath Goslin, 80 Mo. 310; Thompson v. Wooldridge, 102 Mo. 505, 15 S.W. 76; State ex rel. v. Phillip......
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Sellers v. Bailey
...v. Glasscock, 79 Mo. 579; Edmonson v. Phillips, 73 Mo. 58; Smith v. Lindsey, 89 Mo. 76; Coffin Co. v. Rubleman, 15 Mo.App. 280; Henzlee v. Cannefax, 49 Mo. 295; Howell v. Reynolds Co., 51 Mo. 154. This was not raised in the court below in any manner whatever, not even in the motion in arres......
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Roden v. Helm
...new trial, which, as the court held in Davis v. Davis, 8 Mo. 56, is a species of gambling not allowed in a court of justice." In Henslee v. Cannefax, 49 Mo. 295, the parties went trial without a reply having been filed and it was discovered before the case went to the jury that no reply had......
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Epperson v. Postal Tel. Cable Co.
...not expressly pleaded by his adversary. This has been the undeviating doctrine of this court ever since its announcement made in Henslee v. Cannefax, 49 Mo. 295, where plaintiff failed to file a replication, but where the trial had been conducted as if such reply had been filed, and it was ......