Laclede Power Co. v. Nash-Smith Tea & Coffee Co.

• Decision Date: 10 June 1902
• Citation: 69 S.W. 27,95 Mo. App. 412
• Court: Missouri Court of Appeals
• Parties: LACLEDE POWER CO. v. NASH-SMITH TEA & COFFEE CO.

69 S.W. 27

95 Mo. A. 412

LACLEDE POWER CO. v. NASH-SMITH TEA & COFFEE CO.

Court of Appeals at St. Louis, Missouri.

June 10, 1902.

NEW TRIAL — WEIGHT OF EVIDENCE — APPEAL — REVIEW.

1. By contract plaintiff was to supply defendant with a given amount of electrical power for business purposes, and defendant was to accept and pay for it during a certain period. Several months before the period expired, defendant stopped receiving the supply of power. Plaintiff sued for breach of contract, and it appeared, without objection, what plaintiff's average profits would be for furnishing said power to defendant for the unexpired term of the contract. The trial court (under evidence stated in the opinion) gave an instruction authorizing a recovery of substantial damages, but the jury returned a verdict for plaintiff for nominal damages, after which plaintiff was granted a new trial on motion. Held, that said ruling was a proper exercise of the discretionary power of the court to grant a new trial upon the weight of the evidence.

2. Where the trial court rules that a verdict is "against the evidence," the ruling amounts to a decision that the verdict is against the weight of evidence. Parker v. Cassingham, 32 S. W. 487, 130 Mo. 348, followed.

3. Where a new trial is granted upon a discretionary ground, the order will not be reversed unless an abuse of discretion is shown.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court; W. B. Douglass, Judge.

Action by the Laclede Power Company against the Nash-Smith Tea & Coffee Company. Verdict for plaintiff for nominal damages. From an order granting a new trial, defendant appeals. Affirmed.

T. J. Rowe, for appellant. C. R. Skinker, for respondent.

BARCLAY, J.

The present appeal is from an order sustaining a motion for a new trial. The plaintiff sues for substantial damages for breach of a contract to furnish electric power. Upon issues joined there was a verdict for plaintiff for nominal damages only. Plaintiff then moved for a new trial in due course on the grounds that the trial court erred in: "(1) Modifying instructions asked by plaintiff; (2) instructing the jury of its own motion; (3) refusing instructions asked by the plaintiff; (4) admitting illegal evidence over the objection of the plaintiff; (5) because the verdict of the jury is contrary to the instructions given by the court, and is manifestly the result of passion, prejudice, or mistake on the part of the jury; (6) the verdict is against the law; (7) the verdict is against the evidence." Judge Douglass, who tried the cause on the circuit, sustained the motion on the ground that the verdict was "against the evidence and against the instructions of the court." The defendant thereupon appealed from that order, after preserving the usual exceptions.

1. A ruling that the verdict is "against the evidence" amounts to a decision that the verdict is against the weight of the evidence, according to the view of the First division of the supreme court heretofore expressed on that subject. Parker v. Cassingham, 130 Mo. 348, 32 S. W. 487. That ground for granting a new trial is discretionary. It is not within the proper province of an appellate court to reverse such a ruling unless there has been an abuse of discretion on the part of the trial judge. Bemis Bros. Bag Co. v. Ryan Commission Co. (St. L.) 74 Mo. App. 627. This case does not exhibit any abuse of discretion.

2. The action is prosecuted by the Laclede Power Company for damages upon an alleged breach of a contract of defendant to take a supply of electrical power for business purposes in the city of St. Louis. The contract was formed by a proposal on the part of the defendant to the plaintiff (of date February 1, 1896) in the following terms (omitting the formal introduction and signature): "Please connect your wires to building No. 918-920 N. 6th street, and furnish 50 electric horse power. And we agree to take power for the term and on the conditions mentioned on the back and made part hereof." On the back of the paper containing the foregoing memorandum, signed by defendant, are a number of stipulations. It appears unnecessary, however, to mention more of them than the following: "Rate 4c. per horse power per hour by meter, or, if other power company gives lower rates, this company's refusal to meet them voids contract. * * * This contract shall be in force from and after date, and shall continue for periods of one year until either party shall, at the expiration of any year, give written notice of its desire to discontinue this arrangement." About February 24, 1896, plaintiff connected its wires with defendant's place of business, and furnished electric motive power thereto until February 15, 1899, when defendant refused to receive a further supply of power from plaintiff. Shortly before the last-named date, on January 14, 1899, defendant gave plaintiff a written notice as follows (omitting caption and signature): "Take notice that on and after February 15th, 1899, we shall cease to use your electric power in our factory, 918 and 920 North Sixth street, St. Louis, Mo." The petition states the substance of the transaction above mentioned, which appeared in evidence, and charged that on or about February 15, 1899, "defendant ceased to take said power from plaintiff, and, though plaintiff has been at all times on and after February 15, 1899, ready,...