Pope v. Salsman

35 Mo. 362 | Mo. | 1865

Dryden, Judge,

delivered the opinion of the court.

In this case the respondent recovered judgment for three hundred and thirty-six dollars and twenty-nine cents, whereas he demanded in his petition only one hundred dollars. This was error apparent on the record, for which the judgment must be reversed. Furthermore, we think the amended petition on which the case was tried is clearly bad, in that it contains the statement of no cause of action; and not for the reason argued by the plaintiff in error, that the cause of action stated in it is a different one from that stated in the original petition. If the purpose of the proceeding be the settlement of partnership accounts between the parties, the amended petition is deficient not only in not showing the existence of a partnership, but in not containing any statement of the partnership account by the plaintiff, or in not asking a statement by the defendant.

Viewed as a proceeding by one tenant in common for an account of the rents and profits against his co-tenant, the petition is defective in not showing what the rents and profits were, nor that the defendant (plaintiff in error) had received any rents or profits. As the case must go back, we suggest to the respondent the propriety of further amending his petition on such terms as the Circuit Court may deem just, so as to state a cause of actio^ if any he has.

Let the judgment be reversed and the cause remanded.

The other judges concur.