Moffatt v. Conklin

CourtUnited States State Supreme Court of Missouri
Writing for the CourtDRYDEN
Citation35 Mo. 453
Decision Date28 February 1865
PartiesT. J. MOFFATT, Respondent, v. A. A. CONKLIN et al., Appellants.

35 Mo. 453

T. J. MOFFATT, Respondent,
v.
A. A. CONKLIN et al., Appellants.

Supreme Court of Missouri.

February Term, 1865.


Appeal from Livingston Circuit Court.

S. Turner and A. M. Woolfolk, for appellants.

I. The court erred in granting the instruction of plaintiff. By this instruction the plaintiff sought to recover on a cause

[35 Mo. 454]

of action different from the one stated in his petition. The cause of action stated in the petition was that appellants had first rescinded the written contract with Armstrong & Bent, and then, falsely and fraudulently representing to respondent that it was still in force, had induced him to pay $600 thereon. The instruction abandons this cause of action, and, no longer relying upon fraudulent misrepresentation as a ground of action, seeks to recover not because any fraud had been practised upon him, or the written contract with Armstrong & Bent had been rescinded before the conditional sale to him, but because it was rescinded after such conditional sale, and after the written contract had again come into the possession and control of the appellants, by virtue of their agreement with him at the time of said conditional sale. (17 Mo. 586; 15 Mo. 271; 18 Mo. 140; 7 Cranch, 208; 6 Johnson, 560; 19 Johnson, 405.)

II. The instruction of respondent also excluded from the consideration of the jury questions raised by the evidence of appellants, and left no questions of fact to be determined by them. (27 Mo. 55.) Under this instruction the jury were simply permitted to compute the interest on respondent's demand, and this instruction excluded from their consideration all the varied questions arising under the law of forfeiture--penalty and liquidated damages--which were suggested by the evidence in this case. The instruction of respondent did not present the law correctly. (10 Barb., N. Y., 59; 22 Wend. 201; 26 Wend. 630; 11 Barb. 128; Sedg. Dam. 425, n., t.)

Madison & Jones, for respondent.

Under the pleadings it was not necessary for plaintiff to prove the declarations made by appellants, when the contract was assigned or before. It was enough for him to show that the $600 had been fraudulently obtained by appellants. (12 Mo. 517; 7 Mo. 245; Chit. on Contr. 682; 1 Bouv. Inst. 227-28.) There is no evidence that the $600 paid by respondent was to be taken as the amount of damages

[35 Mo. 455]

liquidated in case of respondent's failure to pay the other $700, nor is there any such defense set up in the answer. The appellants, in their answer, make no claims for damages or recoupment, &c.


DRYDEN, Judge, delivered the opinion of the court.

In this...

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14 practice notes
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...Idaho 425, 17 P. 139; Terry v. Shiebly, 64 Ind. 106; Glass v. Gelvin, 80 Mo. 297; Capital Bank v. Armstrong, 62 Mo. 59; Moffat v. Conklin, 35 Mo. 453; Wade v. Hardy, 75 Mo. 394; Frederick v. Kinzer, 17 Neb. 366, 22 N.W. 770; Marx v. Schwartz, 14 Or. 177, 12 P. 253; Parker v. Marquis, 64 Mo.......
  • Straus v. Kansas City, St. Joseph & Council Bluffs R.R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • April 30, 1885
    ...191. The instruction ignored the question of negligence, the [86 Mo. 423]gist of the action. State v. Hill, 69 Mo. 451; Moffatt v. Conklin, 35 Mo. 453; Randle v. Ry. Co., 65 Mo. 325; Brown v. Street Ry., 49 Mich. 153; Mitchell v. Ry. Co., 51 Mich. 236. “The instruction in question withdraws......
  • Louisville & N.R. Co. v. Handley
    • United States
    • Supreme Court of Alabama
    • November 16, 1911
    ...trial court, it was entitled to the benefit of same in the charge of the court. Pratt Coal Co. v. Davidson, 55 So. 886; Moffatt v. Conklin, 35 Mo. 453. It is true the court gave a written charge for the defendant, instructing a verdict for the said defendant upon proof of the second plea; b......
  • Peck v. Ritchey
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1877
    ...Bowling v. Hax, 55 Mo. 446; Chouquette v. Barada, 28 Mo. 491; Merritt v. Given, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Moffatt v. Conklin, 35 Mo. 453; Sawyer v. Han. & St. Jo. R. R. Co., 37 Mo. 240. 7. The fourteenth instruction is in direct conflict with the well settled rule of law, that......
  • Request a trial to view additional results
14 cases
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...Idaho 425, 17 P. 139; Terry v. Shiebly, 64 Ind. 106; Glass v. Gelvin, 80 Mo. 297; Capital Bank v. Armstrong, 62 Mo. 59; Moffat v. Conklin, 35 Mo. 453; Wade v. Hardy, 75 Mo. 394; Frederick v. Kinzer, 17 Neb. 366, 22 N.W. 770; Marx v. Schwartz, 14 Or. 177, 12 P. 253; Parker v. Marquis, 64 Mo.......
  • Straus v. Kansas City, St. Joseph & Council Bluffs R.R. Co.
    • United States
    • United States State Supreme Court of Missouri
    • April 30, 1885
    ...191. The instruction ignored the question of negligence, the [86 Mo. 423]gist of the action. State v. Hill, 69 Mo. 451; Moffatt v. Conklin, 35 Mo. 453; Randle v. Ry. Co., 65 Mo. 325; Brown v. Street Ry., 49 Mich. 153; Mitchell v. Ry. Co., 51 Mich. 236. “The instruction in question withdraws......
  • Louisville & N.R. Co. v. Handley
    • United States
    • Supreme Court of Alabama
    • November 16, 1911
    ...trial court, it was entitled to the benefit of same in the charge of the court. Pratt Coal Co. v. Davidson, 55 So. 886; Moffatt v. Conklin, 35 Mo. 453. It is true the court gave a written charge for the defendant, instructing a verdict for the said defendant upon proof of the second plea; b......
  • Peck v. Ritchey
    • United States
    • United States State Supreme Court of Missouri
    • October 31, 1877
    ...Bowling v. Hax, 55 Mo. 446; Chouquette v. Barada, 28 Mo. 491; Merritt v. Given, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Moffatt v. Conklin, 35 Mo. 453; Sawyer v. Han. & St. Jo. R. R. Co., 37 Mo. 240. 7. The fourteenth instruction is in direct conflict with the well settled rule of law, that......
  • Request a trial to view additional results

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