State ex rel. Gardner v. Webb

• Decision Date: 19 January 1914
• Citation: 164 S.W. 184,177 Mo.App. 60
• Parties: STATE OF MISSOURI ex rel. CHARLES C. GARDNER, Defendant in Error, v. OSCAR H. WEBB and ALBERT H. LATHAM, Plaintiffs in Error
• Court: Kansas Court of Appeals

164 S.W. 184

177 Mo.App. 60

STATE OF MISSOURI ex rel. CHARLES C. GARDNER, Defendant in Error, v. OSCAR H. WEBB and ALBERT H. LATHAM, Plaintiffs in Error

Court of Appeals of Missouri, Kansas City

January 19, 1914

[Copyrighted Material Omitted]

177 Mo.App. 60 at 67.

Original Opinion of January 19, 1914, Reported at: 177 Mo.App. 60.

OPINION

ON MOTION FOR REHEARING.

In their motion for a rehearing counsel for defendants argue that in the foregoing opinion we have treated averments of mere legal conclusions as statements of constitutive facts and thus have ignored the well-settled rule that "the allegation of a conclusion of law raises no issue." [Mallinckrodt Chemical Works v. Neunnich, 169 Mo. 388, 69 S.W. 355; Vogeler v. Punch, 205 Mo. 558, 103 S.W. 1001; Gibson v. Railroad, 225 Mo. 473, 482, 125 S.W. 453.]

We think this argument proceeds from an erroneous understanding of the nature of the allegations that plaintiff "at the time of making the loan relied upon said notarial acknowledgment so taken by the said defendant Webber, and accepted same as the genuine affidavit of the said Wolf and Potes. But relying upon the genuineness of said acknowledgment he made said loan, and has thereby lost the sum of four thousand dollars ($ 4000), with interest thereon. . . ."

That and similar allegations appearing in the petition should not be classed as legal conclusions but as statements of an elemental fact of plaintiff's cause. It was incumbent on plaintiff to plead and prove not only that a false certificate was made but that he relied upon it and did not make the loan and part with his money until he had been subjected to its influence. In saying that he relied upon it, he stated a fact as distinguished from a mere conclusion.