Garvey & Co. v. Hauck

Missouri Court of Appeals

Garvey & Co. v. Hauck

85 Mo. App. 14, 1900 Mo. App. LEXIS 381

DecidedJune 11, 1900

StatusPublished

This text of 85 Mo. App. 14 (Garvey & Co. v. Hauck) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Garvey & Co. v. Hauck, 85 Mo. App. 14, 1900 Mo. App. LEXIS 381 (Mo. Ct. App. 1900).

Pincite

Opinion

ELLISON, J.

— This action was instituted by filing a petition containing two counts. The first was for the price of a pump and attachments. The second was for some items of account. The answer was a general denial of the first count, and an admission of an indebtedness of $1.80 on the second, which sum was tendered plaintiff and refused and then tendered in court. The judgment was for plaintiffs for the $1.80 only, and they appeal.

The trial court admitted evidence over plaintiffs’ objection that there was a warranty that the pump would do and perform service in a certain way and that there was failure of warranty. This was error. The warranty and failure thereof was new matter which should have been pleaded in the answer.

If the answer should be amended setting up the warranty and a breach thereof, the onus will be on defendant to establish the defense, plaintiffs being at liberty to offer evidence in rebuttal. The judgment is reversed and cause remanded.

Smith, P. J., concurs; Gill, ■!., absent.

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ELLISON, J.

— This action was instituted by filing a petition containing two counts. The first was for the price of a pump and attachments. The second was for some items of account. The answer was a general denial of the first count, and an admission of an indebtedness of $1.80 on the second, which sum was tendered plaintiff and refused and then tendered in court. The judgment was for plaintiffs for the $1.80 only, and they appeal.

The trial court admitted evidence over plaintiffs’ objection that there was a warranty that the pump would do and perform service in a certain way and that there was failure of warranty. This was error. The warranty and failure thereof was new matter which should have been pleaded in the answer.

If the answer should be amended setting up the warranty and a breach thereof, the onus will be on defendant to establish the defense, plaintiffs being at liberty to offer evidence in rebuttal. The judgment is reversed and cause remanded.

Smith, P. J., concurs; Gill, ■!., absent.

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Bluebook (online)

85 Mo. App. 14, 1900 Mo. App. LEXIS 381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garvey-co-v-hauck-moctapp-1900.