Parker v. Marquis

CourtUnited States State Supreme Court of Missouri
Writing for the CourtNORTON
PartiesA. H. PARKER, Appellant, v. CHAS. MARQUIS, Respondent.
Decision Date31 October 1876

64 Mo. 38

A. H. PARKER, Appellant,
v.
CHAS.
MARQUIS, Respondent.

Supreme Court of Missouri.

October Term, 1876.


Appeal from Jasper County Common Pleas Court.

Lay & Belch, for Appellant.

I. The first count setting up a counter-claim in the answer is fatally defective in not averring an offer to return the property on discovery of the fraud. (1 Chit. Cont. [5 ed.], p. 658; Stearns vs. McCulloch, 18 Mo. 411; Johnson vs. Meyer's Ex'r, 34 Mo. 255.) It is also defective in that it does not allege that the disease was not perceptible on the sheep. (Stewart vs. Dugan, 4 Mo. 245; Benj. Sales, 457.)

II. The second counter-claim is defective in that it does not state that the defendant relied on the representations made by the plaintiff.

III. The instructions asked by the plaintiff should have been given. The contract sued on, and the pleadings themselves, show the existence of the facts on which they are predicated. Their refusal simply allows the defendant to reap all the benefits and to bear none of the burdens of the contract.

[64 Mo. 39]

IV. The third instruction given for defendant is erroneous. By the terms of the contract sued on defendant was bound to care for and feed the sheep. If he could recover at all, it would only be for such care and attention as were made necessary by the disease, over and above the ordinary care and attention.

V. The fourth instruction given for defendant is erroneous. To make a representation ground for action of deceit or fraud, it must have been known to be false, and have been made with intent to deceive and defraud. (Joliffe vs. Collins, 21 Mo. 338; Peers vs. Davis' Adm'rs, 29 Mo. 184.)

E. J. Montague, for Respondent.

I. The matter set up as counter-claim was proper. (2 Wagn. Stat. p. 1016, § 13; Empire Trans. Co. vs. Boggiano, 52 Mo. 294.)

II. Fraud in the transaction, which is the subject of the suit, may be the subject of counter-claim. (Wat. Set-off, Rec. Count. 623, § 612, 2d ed.)

III. It was not necessary that defendant return the sheep, upon discovery of the fraud, to enable him to interpose his defense when sued on the contract. (Wat. Set-off, etc., §§ 493, 495; Sedg. Dam. top p. 312, side p. 296, 3d ed.; Whitney vs. Allaire, 4 Denio, 554.)

IV. The measure of damages as declared by the court below was proper. Damages are the natural and proximate results of the injuries complained of. (Sedg. Dam., 3d ed., top 64, 65, side p. 66, 67.) Time employed and expense incurred in feeding and doctoring the sheep were the natural results of the fraud practiced upon the defendant, and were proper subjects for consideration by the jury in estimating defendant's damage. (Sedg. Dam., 3d ed., pp. 74, 75, 76, 77.)


NORTON, Judge, delivered the opinion of the court.

Plaintiff's action is founded on a written contract in which plaintiff agreed “to furnish defendant with 1134 sheep for one year in good fix,” and to bear half the loss of said sheep from

[64 Mo. 40]

death; the defendant on his part agreeing to take, feed, and care for said sheep for one year, and bear half the loss of the sheep, and to have for his pay one-half the wool and one-half the lambs.

In his petition plaintiff alleged that defendant at the end...

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38 practice notes
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...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. 38.) It is a general rule of law that in criminal prosecutions the burden of proof never shifts, but as to all defenses which the evidence tends ......
  • Bean v. Bickley, 31619
    • United States
    • United States State Supreme Court of Iowa
    • November 11, 1919
    ...v. Libby, 36 Minn. 287 (31 N.W. 52); Whitney v. Allaire, 1 N.Y. 305; Mallory v. Leach, [174 N.W. 684] 35 Vt. 156; and Parker v. Marquis, 64 Mo. 38. Naturally, this suggests the inquiry, What is such "executory contract" as this rule deals with? [187 Iowa 711] By such contract is not necessa......
  • Bean v. Bickley, No. 31619.
    • United States
    • United States State Supreme Court of Iowa
    • November 11, 1919
    ...36 Minn. 287, 31 N. W. 52;Whitney v. Allaire, 1 N. Y. 305; [174 N.W. 684]Mallory v. Leach, 35 Vt. 156, 82 Am. Dec. 625;Parker v. Marquis, 64 Mo. 38. Naturally, this suggests the inquiry, What is such “executory contract” as this rule deals with? By such contract is not necessarily meant any......
  • Harris v. Egger, 2596.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 5, 1915
    ...appearing later in the opinion (85 F. at pages 747 to 749, 29 C.C.A. 420 to 422), upon People v. Stephens, 71 N.Y. 527, Parker v. Marquis, 64 Mo. 38, and Whitney v. Allaire, 4 Denio, 554; for the effort was to show that in Parker v. Marquis the subject of the sale had been delivered to and ......
  • Request a trial to view additional results
38 cases
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...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. 38.) It is a general rule of law that in criminal prosecutions the burden of proof never shifts, but as to all defenses which the evidence tends ......
  • Bean v. Bickley, 31619
    • United States
    • United States State Supreme Court of Iowa
    • November 11, 1919
    ...v. Libby, 36 Minn. 287 (31 N.W. 52); Whitney v. Allaire, 1 N.Y. 305; Mallory v. Leach, [174 N.W. 684] 35 Vt. 156; and Parker v. Marquis, 64 Mo. 38. Naturally, this suggests the inquiry, What is such "executory contract" as this rule deals with? [187 Iowa 711] By such contract is not necessa......
  • Bean v. Bickley, No. 31619.
    • United States
    • United States State Supreme Court of Iowa
    • November 11, 1919
    ...36 Minn. 287, 31 N. W. 52;Whitney v. Allaire, 1 N. Y. 305; [174 N.W. 684]Mallory v. Leach, 35 Vt. 156, 82 Am. Dec. 625;Parker v. Marquis, 64 Mo. 38. Naturally, this suggests the inquiry, What is such “executory contract” as this rule deals with? By such contract is not necessarily meant any......
  • Harris v. Egger, 2596.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 5, 1915
    ...appearing later in the opinion (85 F. at pages 747 to 749, 29 C.C.A. 420 to 422), upon People v. Stephens, 71 N.Y. 527, Parker v. Marquis, 64 Mo. 38, and Whitney v. Allaire, 4 Denio, 554; for the effort was to show that in Parker v. Marquis the subject of the sale had been delivered to and ......
  • Request a trial to view additional results

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