Moore v. Mountcastle

• Decision Date: 31 October 1880
• Citation: 72 Mo. 605
• Parties: MOORE v. MOUNTCASTLE, Appellant.
• Court: Missouri Supreme Court

72 Mo. 605

MOORE

v.MOUNTCASTLE, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Cass Circuit Court.--HON. NOAH M. GIVAN, Judge.

AFFIRMED.

Wooldridge & Daniel for appellant.

The court erred in admitting the evidence objected to by the defendant. The petition contains an averment of general damages only, and no averment of loss of time or expenditure of money in travel or board by plaintiff. 1 Chitty Plead., (13 Am. Ed.) 338, 339; Ib., 395, 396; Sedgwick Dam., (5 Ed.) 67, 68; Ib., chap. 24, p. 574, 575, et seq; DeForest v. Leete, 16 Johns. 122; Ryerson v. Marseillis, 16 N. J. L. (1 Harr.) 450; Squier v. Gould, 14 Wend. 159; Rowand v. Bellinger, 3 Strobh. 373; Woodworth v. Woodburn, 20 Ill. 184; Vanderslice v. Newton, 4 N. Y. 133; Whittelsey's Prac., 150, § 128; Webb v. Coonce, 11 Mo. 9; O'Leary v. Rowan, 31 Mo. 117; State v. Blackman, 51 Mo. 319; Lusk v. Briscoe, 65 Mo. 555.

Sloan & Boggess for respondent.

HENRY, J.

It is alleged in the petition that plaintiff and defendant, in the eastern part of the state of Tennessee, in the month of January, 1871, entered into a contract, by the terms of which plaintiff agreed to come to Cass county, Missouri, and improve and cultivate lands of defendant in said county, for the space of five years, or as long as they could agree; that defendant agreed to furnish plenty of money with which to improve said lands and buy agricultural implements, wagons, teams, farm machinery and stock to improve and cultivate such lands, and to give plaintiff one-half of all that could be produced or grown upon the lands, and one-half of the stock raised thereon and remaining at the end of said period; that in March, 1871, plaintiff made and signed a memorandum in writing of their contract, which was not filed with the petition for the reason that it was not under the control of plaintiff; that plaintiff closed up his business in the state of Tennessee, and about the 20th day of March, 1871, came, in pursuance of said contract, to Cass county, Missouri, to perform the same on his part, but that defendant refused to comply with the contract on his part, to plaintiff's damage $1,000. The answer was a general denial, and on a trial of the cause, the plaintiff obtained a judgment for $176, from which defendant has appealed.

1. PRACTICE: harmless error in admitting evidence and giving instructions.

The written evidence of the agreement was contained in a letter, addressed by defendant to J. H. Lacy on the 20th day of March, 1871; and against defendant's objections, J. H. Moore, for plaintiff, testified to the substance of a conversation between himself and defendant in January, 1870, in which the latter stated terms upon which he proposed to let plaintiff farm his lands in Missouri. Those terms differed in some respects from those contained in the letter, and stated in the petition. This was a year before it is pretended that any contract was made by the parties, and for what purpose the evidence was offered, or received, it is difficult to conjecture. It was inadmissible, and, if the trial had been by a jury, might be ground for reversal; but the court tried the cause, without the intervention of a jury, and in a declaration of law, distinctly stated that the plaintiff, in order to recover, must prove the agreement as alleged in the petition. That this testimony of a conversation in 1870, in relation to a contract materially different from that which was made in 1871, twelve months after, had no tendency to prove the contract alleged, and was wholly irrelevant, may be conceded, but we cannot see how it could possibly have prejudiced the defendant. It only showed what defendant himself admits in his testimony, that he and plaintiff were, at one time, in negotiation in relation to such a contract.

2. PLEADING: contract.

The plaintiff testified to the terms of the contract as alleged in the petition, and to...