positive rule in Missouri

2023B.J. largely relies upon State v. Clark, 488 S.W.3d 150 (Mo. App. E.D. 2016).

2017Id.

1988A person who is assailed in a place in which he is entitled to be is not bound to retreat before exercising his right to self-defense, State v. Bartlett, 170 Mo. 658 , 71 S.W. 148 (1902).

1988A person who is assailed in a place in which he is entitled to be is not bound to retreat before exercising his right to self-defense, State v. Bartlett, 170 Mo. 658 , 71 S.W. 148 (1902).

1977Although the case is factually dissimilar, we believe Hofstra v. Schriber, 475 S.W.2d 44 (Mo. 1972), clearly stands for the proposition that *128 a positive violation of the rules of the road constitutes “active” negligence; therefore, a finding that Berry’s reaction to a steering difficulty was negligent — a failure to exercise the highest degree of care as required by § 304.010, para. 1, RSMo Supp. 1975— would in itself defeat her recovery.

1963As the court said of a claim that certain “restrictions” in a zoning ordinance were invalid, “The issue is not brought ‘to exact focus.’ * * * Appellant cannot challenge the validity of Section 8 of the ordinance on hypothetical grounds.” Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1 . c. 1042, 246 S.W. 2d 1 . c. 780.

1963As the court said of a claim that certain “restrictions” in a zoning ordinance were invalid, “The issue is not brought ‘to exact focus.’ * * * Appellant cannot challenge the validity of Section 8 of the ordinance on hypothetical grounds.” Flora Realty & Investment Co. v. City of Ladue, 362 Mo. 1 . c. 1042, 246 S.W. 2d 1 . c. 780.

1958In State v. Robbins, Mo., 269 S.W.2d 27 , loc. cit. 29, this court said, “* * * it is settled that the timely filing of a notice of appeal is ‘the vital step’ for perfecting an appeal and is necessary to invoke appellate jurisdiction * * See, also, State v. Parker, Mo., 310 S.W.2d 923 , loc. cit. 924, where the court said: “The judgment and sentence of defendant on this record was final and appealable when entered.

1958In State v. Robbins, Mo., 269 S.W.2d 27 , loc. cit. 29, this court said, “* * * it is settled that the timely filing of a notice of appeal is ‘the vital step’ for perfecting an appeal and is necessary to invoke appellate jurisdiction * * See, also, State v. Parker, Mo., 310 S.W.2d 923 , loc. cit. 924, where the court said: “The judgment and sentence of defendant on this record was final and appealable when entered.

1955Nevertheless, the rule that, in the absence of fraud or mistake, one is bound by his written contract (and we think the application as an offer was contractual in nature) is a positive rule of substantive law, “which, when applicable, defines the limits of a contract.” Warinner v. Nugent, 362 Mo. 233 , 240 S.W.2d 941, 944 , 26 A.L.R.2d 278 , and authorities cited; Connor v. Temm, Mo.App., 270 S.W.2d 541 .

1955Nevertheless, the rule that, in the absence of fraud or mistake, one is bound by his written contract (and we think the application as an offer was contractual in nature) is a positive rule of substantive law, “which, when applicable, defines the limits of a contract.” Warinner v. Nugent, 362 Mo. 233 , 240 S.W.2d 941, 944 , 26 A.L.R.2d 278 , and authorities cited; Connor v. Temm, Mo.App., 270 S.W.2d 541 .

1955Nevertheless, the rule that, in the absence of fraud or mistake, one is bound by his written contract (and we think the application as an offer was contractual in nature) is a positive rule of substantive law, “which, when applicable, defines the limits of a contract.” Warinner v. Nugent, 362 Mo. 233 , 240 S.W.2d 941, 944 , 26 A.L.R.2d 278 , and authorities cited; Connor v. Temm, Mo.App., 270 S.W.2d 541 .

1930In other words, from the negative conclusions which are to be found most frequently stated in the books, the positive rule is drawn that the improper act referred to in the statute must be one in the nature of a fraud that will prevent the *Page 315 commencement of the action. [Davis v. Carp, 258 Mo. 686 , 167 S.W. 1042 .] Now fraud may manifest itself in devious ways.

1930In other words, from the negative conclusions which are to be found most frequently stated in the books, the positive rule is drawn that the improper act referred to in the statute must be one in the nature of a fraud that will prevent the *Page 315 commencement of the action. [Davis v. Carp, 258 Mo. 686 , 167 S.W. 1042 .] Now fraud may manifest itself in devious ways.

1930Great Northern Railroad Co. v. Wiles, 240 U.S. 444 , is cited.

1909Thus, in Bean v. Kenmuir, 86 Mo. 666 , notwithstanding the positive rule of law that the grant of a remainder after a fee simple is void, the court construed the plain grant to be a life estate only, so as to save the remainder.