Pemberton v. Staples
| Decision Date | 31 October 1839 |
| Citation | 6 Mo. 59 |
| Parties | PEMBERTON v. STAPLES. |
| Court | Missouri Supreme Court |
The following opinion was delivered at the August term of the year 1839, and the cause, on motion of the plaintiff in error, being kept under advisement, and the two Judges who were then on the bench, being still of opinion that its former judgment was correct, now direct their opinions to be transcribed for publication.
WRIGHT & ANDERSON, for Plaintiff. The Circuit Court committed palpable and manifest error in sustaining the demurrer of the plaintiff below to the defendant's plea of fraud, and the counsel cite, in support of their position, 1 Chitty's Pl. 553; 1 Mo. R. 446, Montgomery v. Tipton.
ALLEN, for Defendant. There is no error committed by the court below. See 3 Chitty's Pl. and precedents and authorities there cited in note, p. 963.
Staples sued Pemberton by petition in debt in the Lewis Circuit Court. Pemberton pleaded non est factum and fraud generally. Staples replied to the plea of non est factum and demurred to the plea of fraud. The court sustained the demurrer and the plaintiff had judgment.
The plaintiff in error insists that the Circuit Court erred in sustaining the demurrer to the plea of fraud, and cites the case of Montgomery v. Tipton, 1 Mo. R. 446. In the case there cited, the court held that fraud constituted a good defense in law as well as in equity, and that a general allegation of fraud, without specifying the particulars, was sufficient. There may have been some conflict in the decisions upon this subject, but we have not the authorities to ascertain how far this extends: 3 Chitty, 963, notes M. and I. As at present advised, there seems to be no objection to the law as settled in the case of Montgomery v. Tipton. The other Judges concurring, this cause is reversed and remanded.(a)
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...v. Tipton, 1 Mo. 317, holds a general averment of fraud good in an answer, and cites Chitty's Pleading as authority; and Pemberton v. Staples, 6 Mo. 59, follows in its wake; and the same may be said of Edgell v. Sigerson, 20 Mo. 494. The cases in 1 and 6 Mo. were correctly decided, because ......