158 Mo. App. 147 | Mo. Ct. App. | 1911
(after stating the facts). — The parties assume that the trial court forced plaintiff to take a nonsuit because it believed that upon plaintiff’s evidence no delivery was intended and the transaction was a mere wager and void. We will first consider the action of the court from that standpoint. At the outset we may say that the contract in suit does not come within the denunciation of section 4780, Revised Statutes 1909. That section denounces as gambling and void “all purchases and sales or pretended pur
If there was no other ground upon which to base the action of the trial court than that we have discussed we would feel compelled to reverse the judgment; but there is another ground upon which in our opinion the judgment of the trial court should be affirmed. This is an action on a special contract and in such an action the plaintiff can recover only on the contract pleaded; not on a different one. [Laclede Co. v. Tudor Iron Works, 169 Mo. 137, 69 S. W. 384.] Plaintiff alleges that by the instrument sued on it was agreed that on or before May 18, 1907, upon demand of plaintiff, the defendant would sell to plaintiff 25,000 bushels of wheat at 86% cents per bushel and deliver the same to plaintiff dnring the month of July, 1907. Then, after alleging a demand that defendant sell to him said wheat and defendant’s refusal to sell it to him, plaintiff alleges that “at the times plaintiff made demand upon the defendant for the sale of said wheat to him and at all times, in accordance with the terms of said contract (the contract sued on) the plaintiff was ready, able and willing and duly offered to pay for said wheat. ’ ’ All this shows a clear intent to plead a contract to sell upon demand, i. e., to presently trans