Ball v. Reyburn

Decision Date19 April 1909
Citation136 Mo. App. 546,118 S.W. 524
PartiesBALL et al. v. REYBURN.
CourtMissouri Court of Appeals

The Court of Appeals, while not bound by the finding of the trial court in an equity case, will nevertheless defer largely on disputed matters, to the conclusions of the trial judge based on oral testimony heard by him.

Appeal from Circuit Court, Ray County; Francis H. Trimble, Judge.

Action by Lizzie S. Ball and another as executors of the will of James Ball, against Adam K. Reyburn. Judgment for plaintiffs, and defendant appeals. Affirmed.

James L. Farris, Jr., and Jenkins & Black, for appellant. Lavelock & Kirkpatrick, for respondents.

ELLISON, J.

Plaintiffs are the executors of the will of James Ball, and brought this action for fees alleged to have been earned by Ball as a practicing lawyer in Ray county. They recovered judgment in the trial court. The petition was in two counts, but the second one was abandoned, and the case left to stand on the first, which states the items of indebtedness, and that these had been stated and agreed upon in writing signed by the parties. The contract recites that defendant was indebted to Ball for certain service theretofore rendered, in a case with a coal mining company, in the sum of $200, of which he had paid $50; that he owed him $30 for indebtedness, not stated on what account. It further recites that defendant had employed Ball in a certain injunction case, brought to restrain the city of Richmond from changing and lowering the grade of a street in such city upon which defendant's property abutted, for which services he was to pay $500. There appears a credit of $40 on the contract, which leaves a balance appearing to be due of $640, the amount for which judgment is asked and rendered. We are asked to review the evidence in the record as though the case had been converted by defendant's answer into one in equity, and since in our opinion, considered as a case either at law or in equity, the judgment should be affirmed, we have examined it from the latter...

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