Moore v. McCullough

• Decision Date: 31 May 1838
• Citation: 5 Mo. 141
• Parties: MOORE AND PORTER v. MCCULLOUGH.
• Court: Missouri Supreme Court

5 Mo. 141

MOORE AND PORTER

v.MCCULLOUGH.

Supreme Court of Missouri.

May Term, 1838.

APPEAL FROM THE CIRCUIT COURT OF COOPER COUNTY.

HAYDEN, for Appellants. In the argument of this cause, the counsel for the appellants will insist: 1. That the complainant gave no evidence, nor was there any evidence given, to prove the payment of the purchase money of the lot, as charged in the bill. 2. That, without such proof, the complainant is not entitled to a decree for a conveyance of the lot. 3. That all the proof given related to a question not presented by the complainant in his bill of complaint for the adjudication of the court, and that therefore it was, and is, irrelevant to the issue in the cause. 4. That the defendants had a right to prove any fact conducing to show the non-existence of any fact necessary to be established by complainant to entitle him to a decree against the defendants, and that, therefore, the court below erred in limiting and confining them, upon the hearing of the cause, to the question, whether there was an agreement on the part of complainant and Huston to correct the errors, if any, as to the price charged for the work done in the building of the house. 5. That the court ought to have set aside the decree, and have granted the defendants a new trial in the cause, admitting the hypothesis to be true, that the defendants had a right to go in their proof beyond the question to which they were confined by the court. * * * The complainant, in framing his bill, is required by the rules and practice in chancery, to set forth the matter of his bill plainly, with all necessary circumstances as to the time, place, manner, and incidents; and if anything be set up in the answer, making it necessary for the complainant to change his case, he should do so by amendment or supplemental bill. * * * James v. McKernon, 6 Johns. R. 559, et. al.; Mitford's Pl. 34; 2 Atkins, 141; 3 Atkins, 182; 2 Ves. 225; 14 Johns. R. 515-16, Lyons v. Tallmadge. If it shall be urged by the complainant, that any evidence which was given by the complainant (upon the hearing of which was inapplicable to the issue), ought to have been rejected, upon the motion of the party affected by it, I answer that parol proofs are generally permitted to be made in chancery without prejudice, subject to all just exceptions, but at law, where such proof might influence a jury, it is not allowable. See 14 Johns. R. p. 1. * * * In these two points (5th and 6th), are involved the corrections of the decisions of the court in refusing to permit the defendants to prove all the matters of defense set up in their answer to the bill, and in overruling defendants' motion to set aside the decree and to grant a new trial. The court ought to have permitted the defendants to have proved any fact set up in their answer which would have conduced to show that the complainant had not paid to them the purchase money for the lot, or which would have negatived the existence of any fact, which the complainant was bound to prove to entitle him to a decree. See 1 Maddox's Chancery, 404, et seq., and the authorities there referred to.

ADAMS, for Appellee. The only question in this case is, whether the court erred in refusing to permit the defendants to surcharge and open the account for work rendered by complainant, and settled between the parties? In support of the decree, it is contended, that there was no foundation laid in the answer for opening the account. The answer does not charge any fraud, error or mistake in the settlement, but simply states that there was a settlement, and that complainant said if there was any error or mistake it should be corrected, but whether there was in fact error or mistake, we are not informed by the answer; and it is a well-settled principle, that a stated account cannot be opened except for fraud, error or mistake, specifically charged and set forth. Fonb. Equity, 32, in notes; 1 Maddox's Treatise, 102-3; Com. on Contracts, 473, in notes; 2 Marshall's Rep. 338; 2 Starkie's Ev. 18, 19, 170; Fonb. Equity, 339, in notes; Stoughton v. Lynch, 2 Johns. Ch. Rep. 217; Slu v. Bloom, 20 Johns. R. 689; 1 Story's Equity, 497, 501; James v. McKernon, 6 Johns. R. 559; Lyon v. Tallmadge, 17 Johns. R. 516, side page.

TOMPKINS, J.

McCullough filed his bill in chancery against the appellants, Moore and Porter, and a decree being made in that court against them, they moved the court to set aside the decree, and grant them a new trial. The court overruled their motion, and they appealed to this court. The bill states, that Moore and Porter, the appellants, agreed to sell to McCullough, the complainant, a lot of ground, in the town of Boonville, for the price of three hundred and forty dollars; that the said Moore and Porter executed to him a bond for the conveyance of the same, and that he executed to them his bond for the payment of the purchase money, on or before the first day of May, in the year 1837; at which time they, by their bond, undertook also to convey the lot. It is further stated in the bill, that before the first day of May, in the year 1837, when his bond for the purchase money became due, the complainant paid and satisfied to the said Moore and Porter his bond for the purchase money, and that they refused to convey the lot. The defendants (appellants here), by their answer, admit the contract for the sale of the lot, but deny that the appellee had paid and satisfied to them the purchase money. The appellants, in their answer, proceed then to state that they had employed one Huston to build them a house, and that the appellee had assisted Huston, and on that...