Robards v. Munson

• Decision Date: 31 October 1854
• Citation: 20 Mo. 65
• Parties: ROBARDS, Respondent, v. MUNSON, Appellant.
• Court: Missouri Supreme Court

20 Mo. 65

ROBARDS, Respondent,

v.MUNSON, Appellant.

Supreme Court of Missouri.

October Term, 1854.

1. If a material averment permitted to be inserted in a petition at the trial by way of amendment is unanswered, it is to be taken as admitted. But if the answer contains a defense to the petition with the additional averment, the court should proceed to try the case in the same manner as if the averment had been in the petition at first and was unanswered.

Appeal from Hannibal Court of Common Pleas.

The case is stated in the opinion of the court.

Lakenan, for appellant.

R. F. Richmond, for respondent.

GAMBLE, Judge, delivered the opinion of the court.

This action was founded upon an agreement in writing between the parties, by which Robards was to take Munson to California, furnish him by the way with transportation and subsistence, and Munson was to perform many duties on the road which are specified, and after his arrival in California, was to labor under the control and supervision of Robards, and give him one-half of the proceeds of his labor. The agreement contains many stipulations on each side. The petition alleges performance by the plaintiff of the stipulations of the agreement on his part, and several breaches of contract by the defendant, particularly charging the defendant with abandoning him on the way and failing to work for him in California. The defendant answers the petition, and in his answer, after denying the allegations of the petition, which aver performance by plaintiff, and after averring performance by defendant, he sets up several distinct breaches of the contract by the plaintiff, in failing to furnish the necessary food, transportation and accommodation by the way. The parties went to trial before a jury, and while it was in progress, the plaintiff amended his petition by correcting a mistake (as to place) made in one of the allegations in his petition, and by averring the performance, on his part, of one of the stipulations in the agreement, which he had not specifically averred in his original petition. There was not a new petition filed, but merely a paper containing the correction of the mistake in the original petition and the additional averment.

The defendant demurred to this amendment, and the court overruled the demurrer, and upon failure to answer, gave judgment upon the additional averment for a sum which was stated in it to be the expense incurred by the plaintiff by his performance, which, in that averment, was...