McAllister v. City of Riesel, Tex., 11100.
| Citation | 146 F.2d 130 |
| Decision Date | 11 January 1945 |
| Docket Number | No. 11100.,11100. |
| Parties | McALLISTER v. CITY OF RIESEL, TEX. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Will A. Morriss and Will A. Morriss, Jr., both of San Antonio, Tex., for appellant.
John Maxwell, of Waco, Tex., for appellee.
Before HUTCHESON, WALLER, and LEE, Circuit Judges.
The complaint as amended does not allege the performance of the conditions precedent to Plaintiff's right to recover; nor does it allege that such performance was wrongfully prevented by the City; nor that the period from September 2, 1935, until July 15, 1938, was not a reasonable time within which to perform the conditions precedent; nor was the performance of the conditions precedent in any wise alleged or excused.
Any right in the Plaintiff to receive compensation was contingent under the contract, and the contract was so vague and indefinite as not to be enforcible against the City.
The order of the lower Court in dismissing the complaint is affirmed.
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...be pleaded and proved. See Fed.R. Civ.P. 9(c). The failure of the defendant to do so is fatal to his claim. See McAllister v. City of Riesel, 146 F.2d 130 (5th Cir. 1945). The plaintiff's motion for partial summary judgment is GRANTED as to those portions of the counterclaim pertaining to t......
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Holley Coal Co. v. Globe Indemnity Co.
...an affirmative defense), to be pleaded and proved by it. Federal Rules of Civil Procedure, Rule 9(c), 28 U.S.C.A.; McAllister v. City of Riesel, Tex., 5 Cir., 146 F.2d 130. Be that as it may, Rules 15(b) and 15(c) of the Federal Rules of Civil Procedure "(b) Amendments to Conform to the Evi......
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Royal McBee Corporation v. Bryant
...of Columbia, 183 F.Supp. 684 (D.C.1960); Holley Coal Co. v. Globe Indemnity Co., 186 F.2d 291 (4th Cir. 1950); McAllister v. City of Riesel, Tex., 146 F.2d 130 (5th Cir. 1944), cert. den. 325 U.S. 860, 65 S.Ct. 1195, 89 L. Ed. 1981 (1945); Baker v. Union Tank Car Company, 140 So.2d 397 (La.......
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McAllister v. City of Moody, 11111.
...WALLER, and LEE, Circuit Judges. PER CURIAM. The order of dismissal is affirmed upon the same grounds as stated in McAllister v. City of Riesel, 5 Cir., 146 F.2d 130. ...