Bowling v. McFarland

38 Mo. 465

Opinion

Holmes, Judge,

delivered the opinion of the court.

The cause of action was founded upon a written instrument, of which a copy was filed with the petition ; but the petition did not state the terms and substance of the contract. It has been already decided that in determining the sufficiency of the petition, the averments contained in it can alone be considered; and that the instrument filed as an exhibit constitutes no part of the petition—Baker v. Berry, 37 Mo. 306 ; Curry v. Lackey, 35 Mo. 392. The forms contained in the Practice Act of 1849 were a part of the statutes, but the forms recommended by the editor of the Revised Statutes of 1855 have not the sanction of legislative enactment. The petition was clearly bad on demurrer, or on motion in arrest of judgment.

Reversed and remanded.

The other judges concur.