Phleger v. Weltner

Hall, J. — The question for our determination in this case arises from the action of the trial court in refusing to give the declarations of law asked by the plaintiff. By the petition, the plaintiff’s right to a recovery is made to depend upon the false and fraudulent representations made by the defendant as to the amount paid by him for certain machinery, and upon the payment of said amount by the plaintiff, in ignorance of the fact that the said representations were false and fraudulent. By thef [586] petition, the payment by the plaintiff is made to have been voluntary and in ignorance of the actual facts. Upon no other than this cause of action, as alleged in the petition, without amendment of the petition, could the plaintiff have recovered. The plaintiff could not allege one cause of action in the petition, and recover upon another cause of action, established by the proof. Field v. Ry. Co., 76 Mo. 616; Waldhier v. Ry. Co., 71 Mo. 514. Proof of the false and fraudulent representations made by the defendant, as alleged in the petition, and of the involuntary payment by the plaintiff under duress, with Knowledge of all the facts, was a failure of proof, and not a mere variance. By such proof, the cause of action, alleged in the petition, was unproved “in its entire scope and meaning,” and not in some particulars only. Waldhier v. Ry. Co., supra; Beck v. Ferara, 19 Mo. 30; sect. 3702, Rev. Stat. A plaintiff cannot be permitted to base, in the petition, his cause of action upon a voluntary payment by him, without notice of certain fraud, and then to recover upon proof of an involuntary payment by him, made under duress, with full knowledge of said fraud. The declarations of law asked by plaintiff, were founded upon supposed proof of duress; such proof did not tend to establish the cause of action alleged in the petition, and, hence, the declarations of law were properly refused by the court. Judgment affirmed. All concur.