Meade v. Weed , 45 Mo. App. 385 ( 1891 )

Ellison, J.

— This action is based on an agreement to pay $900 for certain “renewals of the North American Accident (Insurance) Company.” The defense was fraudulent representations material to the contract. The judgment was for plaintiff, and defendants appeal.

The sole complaint here is that the court refused the following instructions: “If the jury believe from the evidence that the sale of the lists was made under a representation that said lists were in the hands of no other person or persons ; that at the time said representation was made said plaintiffs had no knowledge whatever as to whether other persons had said lists, but asserted as a fact that they had not, and if the jury further believe from the evidence that said lists were in the hands of one Stephenson at the time said contract was made, and said representation put forth, then the-plaintiff cannot recover.”

We gather from briefs of counsel that other instructions were given on the question of false and fraudulent representations, but only the one above set out ha» been set out in appellants’ abstract. If this one contains a correct declaration as applied to the case, we must assume that its substance was included in others that were given. Nothing to the contrary appearing, we presume the circuit court gave proper instructions. If it did not, it was appellants’ duty to make it apparent. They should have set out the other instructions.

We have, however, examined the testimony, and do not find that it would, as presented to us, have justified the instruction. The judgment will be affirmed.

All concur.