69 Mo. App. 608 | Mo. Ct. App. | 1897
Appellants filed before James O. Williams, a justice of the peace of Christian county, the following statement for suit:
“J. J. Williams and W. W. Wil-] liams, Plaintiffs. ! v. f D. O. Sanders, Defendant. J
Before J. J. Williams, justice of the peace of Polktownship.
“D. O. Sanders, dr. to J. J. and W. D. Williams, for 6 /i o o acres of corn at $15 per acre, which was.*610 bought and paid for about September, 1894, by the said plaintiffs and not delivered by said defendant. Amount $103.75, for which plaintiffs ask judgment, together with costs of said suit.”
On the return day of the summons, January 22, 1896, plaintiffs filed before the justice the following amended statement:
“Plaintiffs, J. J. Williams and W. D. Williams, for their cause of action state that on or about September 5, 1894, they, the said plaintiffs, bought of said defendant a certain field of standing corn on the farm of said defendant in Polk township, Christian county, Missouri, at the price and for the sum of $15 per acre, which field of corn was represented by said defendants to contain twenty-five acres after deducting two acres for waste. Said defendant falsely and fraudulently represented to said plaintiffs that said ground had been measured, and that there were twenty-five acres of said corn, which statement and representation defendant well knew to be false, after making said deduction aforesaid; and said plaintiffs believing and relying on said false representations and fraudulent statement made by said defendant to said plaintiffs to be true, paid to said defendant the agreed price and sum of $15 per acre for twenty-five acres, of which sum plaintiffs paid defendant $25 in cash at the said time said contract was made,.and gave a promissory note for the sum of $350, due twelve months after date, bearing interest at the rate of eight per cent from date. After the above transaction plaintiffs, believing there was not twenty-five acres of said corn, wanted said defendant to measure said corn ground, but said defendant refused, saying he would not ‘have a d — n thing to do with it.’”
And thereafter said plaintiffs had said ground measured by the county surveyor, which measurement
Therefore, plaintiffs ask judgment for damages in the sum of $103.75, the price of six and twenty-six hundredths acres of corn, at the said price of $15 per acre, the difference between the amount .represented and sold by defendant and paid for by plaintiffs; or the difference between twenty-five acres paid for by said plaintiffs and the true number of acres of said corn, by actual measurement, which was eighteen and seventy-six hundredths acres.
And plaintiffs further state that by and in consideration of the above fraud and deceit they are further damaged as follows: Cost in suit on said note in hands of third parties, $7.05, and costs for surveying land aforesaid, $8.50, and for loss of time as the direct result of the above false representations, $25, making a total of the six and twenty-six hundredths acres of
Corn aforesaid at $15.00 per acre ...........................$103.75
Cost in suit aforesaid........................................ 7.05
Cost of survey aforesaid ..................................... 8.50
Loss of time and trouble aforesaid............................ 25.00
Total.................................................$144.30
Both parties appeared and a trial was had before the justice on the amended complaint resulting in a
“Plaintiffs for their amended petition state that on September 5, 1894, they bought of defendant the corn then standing in a certain field, on the farm of defendant in' Polk township, Christian county, Missouri, at. the agreed price of $15 per acre; that defendant falsely and fraudulently represented to plaintiffs that said field of corn so bought by plaintiffs contained twenty-five acres of corn, then and there standing allowing two-acres for waste, when in truth and in fact there was then and there only eighteen and seventy-four hundredths acres of corn standing in said field; that relying on said false and fraudulent representations of defendant, then and there made and which defendant then and there knew to be untrue and false, the plaintiffs paid defendant for twenty-five acres of corn at $15 per acre, making the sum of $375, when in fact they received from defendant only eighteen and seventy-four-hundredths acres of corn.
“Whereupon plaintiff prays judgment of and against defendant for the price of six and twenty-six hundredths acres of corn at $15 per acre, amounting-with interest to the sum of,$103.75, which sum defendant had. and received of plaintiff and demand being made, failed and refused to pay to plaintiffs.”
Defendant filed his motion to strike . out the ' amended petition, on the ground that it was an attempt to amend an abandoned pleading, and because, if allowed to amend their original petition in the jus
The bill of exceptions fails to show that the plaintiff saved any exceptions to the ruling of the court in striking out this petition, but does show that plaintiff duly excepted to the action of the court in striking out