Lewis v. S. & M. Frankle

• Decision Date: 06 June 1911
• Court: Missouri Court of Appeals
• Parties: LEWIS v. S. & M. FRANKLE.

138 S.W. 64

158 Mo. A. 262

LEWIS v. S. & M. FRANKLE.

St. Louis Court of Appeals. Missouri.

June 6, 1911.

1. APPEAL AND ERROR (§ 979) — NEW TRIAL — WEIGHT OF EVIDENCE — DISCRETION — REVIEW.

The Supreme Court will not set aside an order denying a new trial on the ground that the verdict was against the weight of the evidence which was conflicting, in the absence of a showing of abuse of discretion.

2. APPEAL AND ERROR (§ 728) — ASSIGNMENTS OF ERROR — EXCLUSION OF EVIDENCE.

An assignment that the court erred in excluding "competent" testimony offered by defendants was insufficient under the rule that, to successfully assign error on the exclusion of evidence, it must appear that the evidence excluded was not only competent, but relevant.

3. APPEAL AND ERROR (§ 931) — TRIAL (§ 377) — TRIAL BY COURT — RECEPTION OF EVIDENCE — PRESUMPTIONS.

The same particularity in the admission of evidence is not required where the trial is to a court without a jury; it being presumed that the court in the determination of the case considers only such evidence as is competent and relevant.

Appeal from Circuit Court, Dunklin County; Henry C. Riley, Judge.

Action by L. A. Lewis against S. & M. Frankle. Judgment for plaintiff, and defendants appeal. Affirmed.

Bradley & McKay, for appellants. Geo. H. Taylor, for respondent.

REYNOLDS, P. J.

This is an action for a balance claimed to be due under a contract for the sale of a stock of merchandise at New Madrid, the balance claimed being $518.05, and $201 for interest accruing. The action was originally instituted in the circuit court of New Madrid county and taken on change of venue to Dunklin county, where an answer was filed denying the indebtedness and setting up a counterclaim, a general denial being filed in reply. Trial was had before the court, a jury being waived. No declarations of law were asked or made. The court found for plaintiff, assessed his damages at $766, and rendered judgment accordingly. Filing a motion for new trial, which was over ruled and exceptions saved, defendants have duly perfected an appeal to this court.

Here four errors are assigned. First. The verdict is for the wrong party. Second. The verdict is excessive. Third. Error in excluding "competent" testimony offered by defendants. Fourth. The court committed error in allowing a certain witness to testify from memory as to what the books of account showed, the books themselves being present, and in permitting the books of account to be introduced in evidence when it had not been shown by the party who kept them that he had made them in the usual course of business.

Counsel for appellants, under their first assignment of error, argue that there is a substantial conflict in the evidence of plaintiff and defendants and that the trial judge ought to have granted a new trial for that reason. It has been decided time and again in this court as well as in the Supreme Court, that where there is a conflict in the evidence the weight to be given to that evidence is with the trial court. Counsel themselves in further support of this proposition argue that the court has large discretion in granting a new trial on the ground that the verdict is against the weight of evidence, but claim...