Frazer v. Roberts

Dryden, Judge, delivered the opinion of the court. The parties to this suit being owners, as partners, of a stock of goods at Granby, in Newton county, the defendants sold their interest in the concern, including the uncollected debts, to the plaintiff, in consideration, as it seems, of one thousand eight hundred dollars paid to the defendants, and of the agreement of the plaintiff to pay the debts of the firm. The plaintiff charges that the defendants falsely and fraudulently represented to the plaintiff, at the time of the sale, that the firm debts did not exceed one thousand dollars, whereas, in fact, they amounted to three thousand dollars; and has brought this suit to recover damages for the fraud. The petition fails to show the obligation of the plaintiff to pay the firm debts, and so it does not appear that the plaintiff was in anywise injured by the alleged fraud. The defendants answered separately. The sale of the goods and the obligation of the plaintiff, by the terms of the contract, to pay the firm debts, is expressly admitted by Roberts, but no such admission appears in the answer of Saunders. A — 461 — trial was liad resulting in a verdict and judgment for the plaintiff. After an unsuccessful motion for a new trial, the defendants made a motion in arrest of judgment, which was sustained, based upon the omission in the petition already alluded to. The plaintiff refused to avail himself of leave to amend his petition, ánd the suit was dismissed, and he appealed to this court. It is conceded by the .appellant’s counsel that the petition is defective, but he maintains that the fault is caused by the verdict. “Nothing is to be presumed after verdict but what is expressly stated in the declaration, or necessarily implied from the facts which are stated.” (2 Tidd’s Prac. 919; 1 Durnf. & East. 145; 7 Durnf. & East. 521.) The petition, for the want of the allegation that plaintiff was bound to pay the debts of the firm, shows no cause of action, and, since none is shown, none can be presumed to have been proven. The doctrine that a defective petition is cured by verdict, has its foundation in the supposition that on the trial the plaintiff proved the fact insufficiently averred, and the existence of which is essential to his cause of action ; but this presumption can never arise where the fact whose proof is to be presumed is not averred at all, because it is not fair to suppose either that the plaintiff would produce, or that the court would hear, proof of a fact not alleged. (2 Tidd’s Pr. 919; 11 Wend. 374; Anderson v. Lynch, 27 Mo. 107; Welch v. Bryan, 28 Mo. 30; Syme v. Steamer Indiana, 28 Mo. 335.) If the answer of both defendants had admitted the thing omitted to be alleged in the petition, we will not undertake to say whether it would not have aided the petition so as to sustain the judgment; but, as the admission was made by one only of the defendants, it could not have that effect. (10 Wheat. 286; 6 Binn. 24.) The judgment of the Circuit Court must be affirmed. The other judges concur.