Cash v. Knapp

• Citation: 113 P.2d 343,112 Mont. 101
• Decision Date: 02 May 1941
• Docket Number: 8150.
• Parties: CASH v. KNAPP.
• Court: Montana Supreme Court

113 P.2d 343

112 Mont. 101

CASH v. KNAPP.

No. 8150.

Supreme Court of Montana

May 2, 1941

Rehearing Denied May 29, 1941.

Appeal from District Court, First Judicial District, Lewis and Clark County; A. J. Horsky, Judge.

Action by W. A. Cash against Frank Knapp for balance due on the purchase price of a set of false teeth. Judgment for defendant, and plaintiff appeals.

Affirmed.

Paul T Keller, of Helena, for appellant.

M. J Thomas, of Helena, for respondent.

ERICKSON Justice.

This action originated in a justice's court for Lewis and Clark county, and from a judgment for the plaintiff appeal was taken to the district court for that county, where a trial was had before a jury which resulted in a verdict for the defendant. From the judgment based on the verdict, this appeal is taken.

The specifications of error are two in number, the first being that the verdict was contrary to the evidence, and the second is that it was contrary to the law as set forth in the instructions.

This court has said many times in the past that the jury is the judge of the evidence, and if there is substantial evidence on which the finding of the jury may be based, this court will not disturb such finding. Brown Bros. Lumber Co. v Mitchell, 95 Mont. 408, 26 P.2d 969.

In this case there can be no question of the sufficiency of the evidence to sustain the findings. Briefly summed up, the testimony is that the defendant purchased from the plaintiff, a dentist, a set of false teeth at an agreed price of $160. Of this amount $10 was paid and the balance is the subject of this suit. On the part of the plaintiff the testimony is that the teeth were built in accordance with the usual dental practice, after impressions had been taken of the defendant's mouth; that they fit the defendant's mouth, and that ordinarily in the case of a patient whose own teeth had been extracted within a few months before the fitting of the false teeth, the patient suffered some discomfort when first using the false teeth, and that some time is necessary in order to become accustomed to the plates. The plaintiff's testimony then is that the teeth were reasonably fit for the purpose for which they were intended.

On the part of the defendant, the testimony is that the teeth were not reasonably fit for the purpose for which they were intended. His testimony is that he could not eat while wearing the teeth, that he had difficulty talking with them, that when he drank water the teeth "floated," that he wore them as much as possible during a period of at least two weeks, but that they were still unsatisfactory, and testified to other facts to the same effect.

Some contention is made by the plaintiff that the defendant has not...