O'Neil v. Crain
| Decision Date | 30 April 1878 |
| Citation | 67 Mo. 250 |
| Parties | O'NEIL v. CRAIN et al., Appellants. |
| Court | Missouri Supreme Court |
Appeal from Linn Court of Common Pleas.--HON. THOMAS WHITAKER, Judge.
S. P. Huston for appellant.
1. The question asked the witness, Black, elicited hearsay, pure and simple--a most subtle poison supplied to the jury with the approbation of the court. 2. There was no sufficient memorandum in writing under the statute of frauds. Crain's letter neither identifies the hogs by quality, kind, age, weight or otherwise, nor names a price. Browne on the Statute of Frauds, (3 Ed.) §§ 371, 385; King v. Wood, 7 Mo. 389.A. W. Mullins for respondent.
This is a suit for the recovery of damages, growing out of an alleged breach of contract on the part of defendants, in refusing to receive and pay for three hundred and sixty hogs, claimed to have been sold to them by plaintiff. The answer denied the allegations of the petition, and interposed the statute of frauds, alleging that the contract was for the sale of personal property, and that there was no sufficient note or memorandum in writing of the same. Judgment was rendered for plaintiff, on the trial, from which, after timely motions for a new trial and arrest had been overruled, defendants have appealed to this court. A reversal of the judgment is sought, on the ground that the court admitted illegal evidence.
During the progress of the trial, a witness, on behalf of plaintiff, was permitted to detail the statements made to him by one Black, in regard to the reason why Blossom, one of the defendants, would not receive and pay for the hogs, which plaintiff offered to deliver under his contract. This evidence was objected to, on the ground that it was mere hearsay. This objection, we think, should have been sustained, and the evidence rejected. Black was not a party to the suit, nor were the statements given in evidence, made either in the presence of Blossom or any other of the defendants. The evidence elicited from this witness was material, inasmuch as it showed an admission, on the part of Blossom, that he did not refuse the hogs because they were not such as plaintiff had agreed to deliver him, but because the price had gone down since he had contracted for them.
It is also argued that the written memorandum of the contract, offered in evidence, was not sufficient to take the case from the operation of the statute of frauds, and that parol evidence could not be received to supply any of its terms. Parol evidence...
To continue reading
Request your trial
-
Kelly v. Thuey
... ... At one time in this court ... the heresy was announced that parol testimony was ... admissible for the purpose indicated. O'Neil v ... Crain , 67 Mo. 250. The last erroneous adjudication on ... this subject is found in Ellis v. Bray , 79 Mo. 227; ... but the contrary and correct ruling ... ...
-
Fairgrieve v. City of Moberly
...against plaintiff. This could only be admitted to impeach the testimony of the father, and was incompetent for any other purpose. O'Neal v. Crane, 67 Mo. 250; v. Burgiss, 71 Mo. 389; Sherlock v. Kimmell, 75 Mo. 77. VI. It was error for the court to say to the jury: " This is no verdict. The......
-
Reigart v. Manufacturers' Coal & Coke Co.
...8 Mo. 303, written by Judge Scott. Ivory v. Murphy, 36 Mo. 534, written by Wagner, Judge. The same ruling was had in the case of O'Neil v. Crain, 67 Mo. 250, written by Judge Norton, and to the same effect Ellis v. Bray, 79 Mo. 227, written by Judge Ray. In the O'Neil-Crain Case was a suit ......
-
Koons v. St. Louis Car Company
...Mo. 389, 391; State v. Cunningham, 154 Mo. 161-172, 55 S.W. 282; Rollins v. Claybrook, 22 Mo. 405; Ellis v. Bray, 79 Mo. 227; O'Neil v. Crain, 67 Mo. 250 at 251.] third, the plaintiff repeatedly stated in his testimony that the verbal contract was not made until after the expiration of at l......