Querbach v. Arnold

Missouri Court of Appeals

Querbach v. Arnold

55 Mo. App. 286, 1893 Mo. App. LEXIS 294

CourtMissouri Court of Appeals

DecidedDecember 4, 1893

StatusPublished

Cited by3 cases

This text of 55 Mo. App. 286 (Querbach v. Arnold) 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

Querbach v. Arnold, 55 Mo. App. 286, 1893 Mo. App. LEXIS 294 (Mo. Ct. App. 1893).

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Opinion

Ellison, J.

This an action for money had and received. The answer was a general denial. The trial was without the aid of a jury and the finding of the court was for the defendant.

It appears that plaintiff and defendant were negotiating for the sale of defendant’s stock of hardware to plaintiff. That an invoice was made and possession turned over to plaintiff and retail sales carried on by him for several days. That, the invoice amounting to more [288]*288than he expected, he went to Illinois to see if he could raise sufficient money to pay for the stock. He ascertained that he could not and so wrote to defendant. Defendant then took charge of the store. At the beginning of the negotiation for the sale, and before the invoice was fairly begun, plaintiff paid defendant $1,000 on the purchase. It is this sum for which this action was instituted.

The sole question tried by the circuit court, so far as we can gather from the record, was whether the sale was conditional or unconditional. This was the theory upon which plaintiff Hied the cause. He asked declarations of law relating solely to such theory. The court gave the declarations but found against him on the facts. Plaintiff now abandons that theory in this court and seeks a reversal of the judgment on other grounds. This he cannot do. Perhaps no question has been more frequently decided by the appellate courts of this state than that the appellant must abide by the case he presents to the trial court, and stand here upon the theory he presents there.

The judgment will be affirmed.

All concur.

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Ellison, J.

This an action for money had and received. The answer was a general denial. The trial was without the aid of a jury and the finding of the court was for the defendant.

It appears that plaintiff and defendant were negotiating for the sale of defendant’s stock of hardware to plaintiff. That an invoice was made and possession turned over to plaintiff and retail sales carried on by him for several days. That, the invoice amounting to more [288]*288than he expected, he went to Illinois to see if he could raise sufficient money to pay for the stock. He ascertained that he could not and so wrote to defendant. Defendant then took charge of the store. At the beginning of the negotiation for the sale, and before the invoice was fairly begun, plaintiff paid defendant $1,000 on the purchase. It is this sum for which this action was instituted.

The sole question tried by the circuit court, so far as we can gather from the record, was whether the sale was conditional or unconditional. This was the theory upon which plaintiff Hied the cause. He asked declarations of law relating solely to such theory. The court gave the declarations but found against him on the facts. Plaintiff now abandons that theory in this court and seeks a reversal of the judgment on other grounds. This he cannot do. Perhaps no question has been more frequently decided by the appellate courts of this state than that the appellant must abide by the case he presents to the trial court, and stand here upon the theory he presents there.

The judgment will be affirmed.

All concur.

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55 Mo. App. 286, 1893 Mo. App. LEXIS 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/querbach-v-arnold-moctapp-1893.

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