Missouri Appeal Reports Volume 54

Missouri Appeal Reports Volume 54

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This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1894 edition. Excerpt: ...were to be $850 instead of $440; and if you further believe that such proposed modifications were accepted by defendant, and that the terms of the original written contract as to furnaces as to heating the building and as to not emitting gas and smoke still remained a part of the modified contract, then you are instructed that if the furnaces put in by plaintiff did not comply with the agreement and guaranty as to heating the building and as to emitting gas and smoke, your findings will be for defendant. The assumption by this instruction that it is admitted by the pleadings by both plaintili and defendant was in writing, we do not find sustained by an inspection of the pleadings. This instruction submits to the jury the proper theory of the case, if such had been the structure of the pleadings. It presents a very plain exposition of the provisions of the written contract and then leaves it to the triers of the fact to determine whether plaintifi and defendant entered into a subsequent parol modification thereof as to the size, heating capacity and price, etc., of said furnaces. It is quite clear that the essential facts embraced in its hypothesis are not within the limits of the pleadings, and for this fault it must be condemned. Aultman-Taylor Co. 22. Smith, 52 Mo. App. 351; Wright U. Fonda, 44 Mo. App. 634; George 12. Railroad, 40 Mo. App. 433; Moflatt 1;. Conklin, Lackland, 67 Mo. 621; Leona: 12. Harrison, 88 Mo. 495; Merrett 11. Poulter, 96 Mo, 240; Noll v. Railroad, 97 Mo. 74; Bender 12. Dangan, 99 Mo. 130. And the defendant's other instructions, except the sixth and seventh, are subject to a like infirmity. No error is perceived in the action of the cour int refusing plaintiff permission to prove an agreement entered into...show more

Product details

  • Paperback | 230 pages
  • 189 x 246 x 12mm | 417g
  • Rarebooksclub.com
  • United States
  • English
  • black & white illustrations
  • 1236816684
  • 9781236816689