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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Snowden v. Gaynor, 710 S.W.2d 481 (1986)

Citation
Snowden v. Gaynor, 710 S.W.2d 481 (1986)
Parent Document
Snowden v. Gaynor, 710 S.W.2d 481 (1986)
Jurisdiction
Missouri (state)
Effective Date
1986-05-20

Other Sections in This Document (77)

Full Text

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While it is true that Count II of defendant’s counterclaim did not mention rescission by name, it is equally true that the damages prayed for therein were the type awarded when rescission is decreed. Furthermore, defendant’s testimony about the amounts she had paid plaintiff and the amounts she had expended for carpeting and drapes was received without objection. Under Rule 55.33(b), Missouri Rules of Civil Procedure (16th ed. 1985), when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In view of the fact that Count II of defendant’s counterclaim sought damages compatible with rescission, and the fact that plaintiff failed to object when defendant presented testimony in support thereof, we hold that the rescission issue was tried by consent, and that Count II of defendant’s counterclaim is deemed amended (if that be necessary) to conform to such evidence. Seaton v. Weir, 633 S.W.2d 212, 214[2] n. 4 (Mo.App.1982); Moranz v. Schiller, 525 S.W.2d 785, 787[4] (Mo.App.1975).