McCormick Harvesting Machine Co. v. Chesrown

<p>Appeal .from, Yernon Circuit Court. — Hon. Chas. Gr. '.Burton, Judge.</p> <p>(1) Plaintiffs’ petition does not statc^facts sufficient to constitute any cause of action agains\\ defendants, and the trial court erred in admitting, on the.trial, over the objections of defendants, any evidence whatever, and in overruling defendants’ motion in arrest of judgment. When a case is constituted of frauds, it must be fully stated of what the fraud consisted, and how it was affected. In all cases where the cancellation of a deed is sought, as in this case, courts of equity will not grant relief unless the court can see from the facts stated that the deed ought to be set aside. 1 Story Eq. Jur., secs. 203e, 694a/ Kerr on Fraud and Mistake, 365, 36é; Bigelow on Fraud, 450, 451; Bliss on Code Pleading';-, sec. 211; Nash on Code Pleading, 361, 362; Curry v.) Reiser, 30 Ind. 214; Joest v. Williams, 42 Ind. 565; McCindley v. Newton, 75 Mo. 115; Smith v. Sims, 77 Mo. 269. (2) The evidence did not justify the finding of the trial court, and was not sufficient to sustain the decree. (3) The finding of the trial court and the decree is contrary to and against the evidence and the law. (4) The record conclusively shows that defendants were prevented by the acts of plaintiffs from performing the conditions of the contract as averred and shown by all the evidence, both of plaintiffs and defendants.</p> <p>(1) The statement and abstract of record as given by appellants do not include a true statement of this case. “This is an equity case, and the whole of the evidence should be given, unless the parties agree upon an abridged statement thereof,” and no such agreement nas been made. Rule 12, Supreme Court of Missouri. (2) The fraud and failure of consideration are sufficiently pleaded in this case, and the petition stated a good cause of action. Bliss on Code Pleading, sec. 211; Blair v. Railroad, 89 Mo. 334; Whittlesey’s Mo. Practice, sec. 145a, subd. h; Fox v. Webster, 46 Mo. 181. (3) A

<p>Appeal from trial term, Monroe county.</p> <p>Action by the Bartholomay Brewing Company against Austin Haley. On a trial by the court, a jury having been waived, the complaint was dismissed “on the ground that at the time of the commencement of this action there was pending another action in the supreme court of this state, brought by the defendant against the plaintiff, in which the same issues are involved as in this action.” From the judgment of dismissal, plaintifl appeals. Affirmed.</p> <p>The opinion of Mr. Justice Davy at trial term is as follows:</p> <p>“This action is brought to recover the balance of the purchase price of a quantity of lager beer sold and delivered by the plaintiff to the defendant at various times during the years of 1895 and 1896. The only defense relied upon by the defendant is that at the time of the commencement of this' action there was pending another action in the supreme court of this state, brought by the defendant against the plaintiff, in which the same issues are involved as are involved in this action, and therefore that action is a bar to the maintenance of this. The only important question for consideration, therefore, is whether the pendency of the first action is a bar to this action. The rule of law is that the pendency of the former action does not abate a second, unless both actions be for the same cause. It was held in Stowell v. Ohamberlin, 60 N. Y: 272, that, to make a judgment in a former action a bar, the circumstances must be such that the plaintiff might have recovered in the first action for the same cause alleged in the second. Dawley v. Brown, 79 N. Y. 397; Marsh v. Masterton, 101 N. Y. 408. The complaint in the first suit sets forth two separate causes of action,—one for damages arising from a breach of warranty in the sale of the lager beer; the other to recover damages which the plaintiff in that action has sustained in his business on account of the sale and delivery of impure and worthless beer, which