Rothschild v. Frensdorf

• Decision Date: 23 March 1886
• Parties: JAKE ROTHSCHILD, Respondent, v. I. FRENSDORF, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 318

JAKE ROTHSCHILD, Respondent, v. I. FRENSDORF, Appellant.

Court of Appeals of Missouri, St. Louis.

March 23, 1886

APPEAL from the Greene County Circuit Court, W. F. GEIGER, Judge.

Reversed and remanded.

GOODE & CRAVENS, for the appellant: The instrument did not show on its face whether it was part of the contract of dissolution, or subsequent to that contract. Benson v Peebles, 5 Mo. 132. Parol evidence is admissible in explanation of a written contract to show the situation of the parties, the object in view, and the consideration, but not to contradict or control the same. Lubke v. Knapp, 79 Mo. 26; Baldwin v. Carter, 17 Conn. 20; Wilson v. Sroup, 2 Cowen 195; Brown v Slater, 16 Conn. 192. An answer must deny every allegation of the petition. Replies are governed by same rules as answers. Rev. Stat., sects. 3521-3526. " The court can not, by its instructions, change the issues presented by the pleadings." Moffatt v Conklin, 35 Mo. 453. Facts not controverted in a previous pleading are to be taken as true in favor of the party pleading them, not as a matter to be submitted to and found by the jury. Bartholow v. Campbell, 56 Mo. 117; Butcher v. Death, 15 Mo. 271; Steil v. Ackli, 15 Mo. 289. " Whenever a defendant intends to rest his defence upon any fact which is not included in the allegations necessary for the support of the plaintiff's case, he must set it out." Northrup v. Insurance Co., 47 Mo. 435; Kersey v. Garton, 77 Mo. 645. Courts should not instruct juries to take for granted facts in issue. Chouquette v. Barada, 28 Mo. 491. The amended replication which the plaintiff filed at the close of the testimony, and in which, for the first time, he maintained fraud and misrepresentations, was not verified. Hence the execution was never denied. Muller v. Insurance Co., 45 Mo. 84.

MASSEY & MCAFEE, for the respondent: In the case of Henslee v. Cannefax (49 Mo. 295), the allegations of new matter set up by the answer were not contradicted by replication, and the court below called attention to it by instructing the jury that such matters stood confessed, and must be taken by them as true. It appeared, as in this case, that testimony was introduced and witnesses examined on the very matters not denied by replication, and no replication was ever offered by the plaintiff, even after attention was called to it by the in structions of the court. The supreme court reversed the judgment, holding that under the circumstances no filing of replication was required. And this case has been affirmed, frequently, since. See Howell v. Reynolds County, 51 Mo. 154; Insurance Co. v. Harlan, 72 Mo. 203; Maulkin v. Malcomb, 78 Mo. 551; Young v. Glasscock, 79 Mo. 580; Heath v. Gaston, 80 Mo. 313.

OPINION

THOMPSON J.

It is important in this case to consider what the issues which were tried really were.

The petition stated in substance that the plaintiff and the defendant were partners; that upon the dissolution of their co-partnership there was an indebtedness of eight hundred dollars due the firm by one Bowe; that it was agreed between the plaintiff and the defendant that the defendant should collect this debt and pay one-half of it to the plaintiff; that the defendant has collected this debt and refuses to pay one-half of it to the plaintiff; wherefore the plaintiff sues.

The answer contains three defences. The first defence admits the facts stated in the petition except the allegation that the defendant has collected the whole sum of eight hundred dollars of Bowe, but admits that he has collected of Bowe the sum of six hundred and twenty-nine dollars. The second defence sets up a written agreement between the plaintiff and the defendant, to the effect that the plaintiff was to pay the defendant one-half of any debts due to the firm which should turn out to be worthless, provided the defendant should be allowed to exercise his discretion about bringing suits on them; alleges that of such debts the sum of $338.75 proved to be worthless, and demanded judgment against the plaintiff by way of counter-claim for one-half of this sum, namely $169.38. The third defence sets up as a counter-claim that the plaintiff is indebted to the defendant in the sum of $350.00, money borrowed of the plaintiff at various times, and demands judgment for this amount.

The reply upon which the case was tried did not contain a general denial of the matter set up in the answer. It denied the making by the plaintiff of the written agreement set up in the second defence in the answer, but as it was not sworn to as required by section 3653, Revised Statutes, and as it did not deny the allegations of that defence, as to the amount of debts due the late firm, which the defendant had been unable to collect, by reason of their being worthless, the whole of the second count of the answer stood admitted. The third defence in the answer was fully traversed by the reply.

It thus appears that it stood admitted by the pleadings that the plaintiff was entitled to recover of the defendant one-half of $629.00, or $314.50, and no more; that, as against this recovery, the defendant was entitled to an off-set in the sum of $169.83; and that the only issue for trial was, whether the plaintiff was entitled to recover of the defendant one-half of any amount exceeding six hundred and twenty-nine dollars, and not exceeding eight hundred dollars, which the defendant had collected from Bowe; and whether the defendant was entitled...