Lynch v. Morrow's Adm'r
| Decision Date | 31 March 1859 |
| Citation | 28 Mo. 357 |
| Parties | LYNCH et al., Appellants, v. MORROW'S ADMINISTRATOR, Respondent. |
| Court | Missouri Supreme Court |
1. A defendant should not be permitted to introduce evidence to support a defence not set up in his answer.
Appeal from St. Louis Land Court.
Cline & Jamison, for appellants.
Barret, for respondent.
The plaintiffs brought their action against the defendant for use and occupation of a tenement belonging to them and rented to the defendant, for which they claimed three hundred dollars. The defendant, in his answer, denied that he was indebted to the plaintiffs the amount they claimed for rent or on any other account, but admitted that he owed them fifty dollars, which he offered, and was still ready and willing to pay, but they refused to accept it. The defendant on the trial was allowed to read in evidence, against the plaintiffs' objection, the following instrument, after first proving its execution:
This paper was inadmissible in any light in which it may be regarded, whether as a promissory note due by the plaintiff to the defendant, or as a receipt for so much money paid by the defendant to the plaintiffs on their demand for rent. The law requires that an answer shall contain, 1st, a special denial of each material allegation in the petition controverted by the defendant, and 2d, a statement of any new matter constituting a defence or counter claim. And, therefore, if the paper was intended to be used as a set-off, it should have been set up in the answer as a counter claim. Or if it was offered to prove a payment of any part of the sum sued for, it ought to have been excluded as there was no such defence as payment made in the answer. (Winston v. Taylor, 28 Mo. 82.)
The other judges concurring, the judgment will be reversed and the cause remanded.
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... ... evidence a defense not pleaded. Strauss v. Zollman, ... 348 Mo. 337, 153 S.W.2d 65; Lynch v. Morrow's ... Admr., 28 Mo. 357; Cowden v. Cairns, 28 Mo ... 471; Currier v. Lowe, 32 Mo ... ...
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Hines v. Western Union Telegraph Co., 40648.
...nor could they establish by evidence a defense not pleaded. Strauss v. Zollman, 348 Mo. 337, 153 S.W. (2d) 65; Lynch v. Morrow's Admr., 28 Mo. 357; Cowden v. Cairns, 28 Mo. 471; Currier v. Lowe, 32 Mo. 203. (6) Evidence that the origin of the water which accumulated in the manhole and overf......
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...rule is axiomatic that triable issues are formed by the pleadings, and cannot be expanded either by evidence or instructions. Lynch v. Morrow's Adm'r, 28 Mo. 357; Currier v. Lowe, 32 Mo. 203; Greene v. Gallagher, 35 Mo. 226. Whatever rights defendant had by its custody of the causes of acti......
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... ... pleadings and cannot be expanded either by evidence or ... instructions. [ Lynch v. Morrow's Adm'r, 28 ... Mo. 357; Currier v. Lowe, 32 Mo. 203; Greene v ... Gallagher, 35 ... ...