McClanahan v. Boggess

• Decision Date: 03 April 1911
• Citation: 136 S.W. 237,154 Mo. App. 600
• Parties: McCLANAHAN v. BOGGESS.
• Court: Missouri Court of Appeals

136 S.W. 237

154 Mo. App. 600

McCLANAHAN v. BOGGESS.

Springfield Court of Appeals. Missouri.

April 3, 1911.

1. PLEADING (§ 236)—AMENDMENTS—DISCRETION OF COURT.

Under Rev. St. 1909, § 1848, the allowing of such amendments to pleadings as do not change the character of the cause of action, or defense, is largely within the discretion of the court, and should be permitted when the ends of justice so require.

2. PLEADING (§ 261)—AMENDMENTS—CHANGING DEFENSE.

In an action for money had and received, where plaintiff alleged that he owned an interest in a mining lease on 40 acres, that 10 acres of the land was sold, and that defendant, who, with others, owned the remaining interest, received the purchase money and refused to pay plaintiff his share, the defense was that plaintiff had agreed with defendant and his associates that they might prospect on such 10 acres on their own account, that, having discovered mineral, they had sold a mining license, that the money received was in payment for such license, that the licensee was to also pay a royalty, and that plaintiff, with full knowledge of all the facts, had accepted his share of such royalty. Held, that an amended answer reiterating the facts alleged in the first answer, and further alleging that the 40 acres had been divided into lots, and that mining rules and regulations had been adopted, under which parties desiring to mine might register by consent of the property owners, and that defendant had complied with such regulations, did not change the defense.

3. APPEAL AND ERROR (§ 1011)—FINDINGS—CONCLUSIVENESS.

A finding on conflicting evidence and sustained by substantial evidence is binding.

Appeal from Circuit Court, Jasper County; Henry L. Bright, Judge.

Action by Ward McClanahan against L. C. Boggess. Judgment for defendant, and plaintiff appeals. Affirmed.

D. C. Mallory and Frank L. Forlow, for appellant. McReynolds & Halliburton, for respondent.

COX, J.

This action is really for money had and received. Trial before the court without a jury, issues found for defendant, and plaintiff has appealed.

The petition alleges: That plaintiff was the owner of a one-eighth interest in a mining lease on the S. E. ¼ of the S. W. ¼, section 28, township 28, range 32, in Jasper county, and that defendant and others owned the other seven-eighths. That 10 acres of said land, to wit, the S. E. 10 acres of the tract, was sold for $7,512.74, and this sum was paid to defendant Boggess who had refused to pay plaintiff his one-eighth part thereof to which as part owner he was entitled. The answer alleged as a defense that the owners of the land, except plaintiff, wanted to prospect on this 10 acres to see if mineral could be developed and it be made producing land; but plaintiff refused to agree to do so, or to...