Slaughter v. Davenport

Decision Date23 May 1899
Citation151 Mo. 26,51 S.W. 471
PartiesSLAUGHTER v. DAVENPORT.
CourtMissouri Supreme Court

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by O. V. Slaughter against Joseph Davenport. There was a judgment granting new trial, and on plaintiff's motion for rehearing the cause was certified to supreme court. Judgment granting new trial affirmed.

Cook & Gossett, for appellant. Ed. G. Taylor, for respondent.

BURGESS, J.

This case was begun before a justice of the peace in Jackson county in the name of T. W. Green, O. V. Slaughter, and H. C. Brooking, plaintiffs, who recovered judgment for the sum of $58.43. From this judgment defendant appealed to the circuit court of said county, and when the case was called for trial at the October term, 1895, of said circuit court, and on the 31st day of said month, plaintiff amended his petition by leave of court, striking out the names of T. W. Green and H. C. Brooking. Thereupon the trial of the cause was proceeded with before the court and jury, which resulted in a verdict and judgment in favor of plaintiff in the sum of $66.75. Within four days thereafter defendant filed his motion for a new trial, assigning as grounds therefor: First, because the court erred in allowing plaintiffs to amend the statement by dismissing and striking out all names of plaintiffs except Slaughter; second, because the action tried in this court is not the action sued on in the justice court, and tried there; third, because the contract testified to by plaintiff, and on which he recovered, is not the contract pleaded in the statement; fourth, because the court erred in permitting plaintiff to introduce improper evidence against the objections of defendant; fifth, because the court erred in giving improper instructions asked for by plaintiff, to wit, Nos. 1, 2, 3, and 4; sixth, because the court erred in refusing to give proper instructions asked for by defendant, to wit, all of the defendant's instructions which the court refused; seventh, because the verdict is against the evidence; eighth, because the court erred in refusing to sustain defendant's demurrer to the evidence; ninth, because the verdict and judgment are against the law; tenth, because there was a fatal variance between the contract given in evidence by plaintiff and the contract pleaded by him. The motion was sustained, and a new trial granted. From the order and judgment of the court sustaining the motion and granting a new trial plaintiff appealed to the Kansas City court of appeals, where the judgment of the circuit court granting the new trial was affirmed, but upon a motion for rehearing the cause was certified to the supreme court upon the ground that the opinion is in conflict with Davis v. Ritchie, 85 Mo. 501. The facts, in addition to those stated, are about as follows: The statement filed with the justice alleges that the defendant, by a written contract, promised to pay the plaintiffs the sum of $50, March 1, 1892, in trust for the purpose of macadamizing what is known as the "Raytown Road" in Jackson county, Missouri, from Leeds to Raytown. It does not allege whether the money was to be paid severally or jointly. On the trial in the circuit court the evidence for plaintiff tended to show that the contract was to pay Brooking, Slaughter, or T. W. Green, and that the only condition therein was that the necessary funds subscribed should be equal to one-fourth the cost of macadamizing the road. The evidence also showed that the amount subscribed was one-fourth of the cost as estimated by the county surveyor in accordance with the statute under which the macadamizing was done. Plaintiff testified that he had signed defendant's name to a subscription paper by his (defendant's) consent, and that the subscription was for building a road from near Leeds to Raytown, or beyond towards Lee's Summit; that Davenport made it a condition of his subscription that his money was not to be used unless the road was macadamized beyond Raytown; that he declined to sign his name to the paper, but stood by in silence when Slaughter told him they must have something to show who subscribed to the fund, and that he would write Davenport's name to the paper; that Davenport gave him (Slaughter) a check for the $50, but upon the express condition that it was not to be used unless the road went beyond Raytown; that Davenport never authorized him to sign his name to a subscription to build a road to Raytown only; that, after the fund was all made up, the county court, in the fall of 1892, let the contract to build the road to Raytown only, whereupon he (Slaughter) returned Davenport's check to him, with the understanding that, if the road was afterwards built beyond Raytown, Davenport would pay the $50; that the subscribed fund was paid over to the county court in August or 1st of September, 1892; the contract for the road was let September 29, 1892; that he never made...

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46 cases
  • Maryland Cas. Co. v. Spitcaufsky
    • United States
    • Missouri Supreme Court
    • February 7, 1944
    ... ... departure therefrom. 1 Houts, Missouri Pleading & Practice, ... sec. 160; Slaughter v. Davenport, 151 Mo. 26, 51 ... S.W. 471; Shern v. Sims, 258 S.W. 1029; Jacobs ... v. Chicago, P. & St. L.R. Co., 204 S.W. 954; State ... ...
  • Kimpton v. Spellman
    • United States
    • Missouri Supreme Court
    • July 20, 1943
    ... ... 182, R. S. 1939; 2 Williston on ... Contracts (Rev. Ed.), sec. 344; Secs. 3340, 3341, R. S. 1939; ... Clarke v. Cable, 21 Mo. 223; Slaughter v ... Davenport, 151 Mo. 26, 51 S.W. 471; Peters v ... McDonough, 327 Mo. 487, 37 S.W.2d 530; State ex rel. v ... Hughes, 347 Mo. 237, 146 ... ...
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    • December 11, 1940
    ...to several while the amendment seeks a recovery on an alleged several obligation. This is a departure and not permissible. Slaughter v. Davenport, 151 Mo. 26; Shern v. Sims, 258 S.W. 1029. (4) Had relator guilty of fraud as to either Mr. Henderson nor Mr. Deacy then since the attorneys' lie......
  • State ex rel. Massman Const. Co. v. Shain
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    • July 7, 1939
    ... ... 226; Ryan v. Riddle, 78 Mo. 524; ... Rainey v. Smizer, 28 Mo. 312; Nelson v. Massman ... Const. Co., 120 S.W.2d 77; Slaughter v ... Davenport, 151 Mo. 32, 51 S.W. 471; Hamrick v ... Lasky, 107 S.W.2d 204; Blake v. Wilson, 35 ... S.W.2d 597; Schiefer v. Freygang, ... ...
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