Licklider v. Domian

• Decision Date: 15 September 1936
• Docket Number: No. 23200.,23200.
• Parties: LICKLIDER v. DOMIAN.
• Court: Missouri Court of Appeals

96 S.W.2d 641

LICKLIDER v. DOMIAN.

No. 23200.

St. Louis Court of Appeals. Missouri.

September 15, 1936.

Appeal from St. Louis Circuit Court; M. G. Baron, Judge.

"Not to be published in State Reports."

Action by Arnold Licklider against Joseph Domian. Verdict and judgment for defendant. From an order granting plaintiff a new trial, defendant appeals.

Affirmed.

Reardon & Lyng and John H. Martin, all of St. Louis, for appellant.

Max Sigoloff, of St. Louis, for respondent.

SUTTON, Commissioner.

This is an action to recover $500, representing an overpayment for labor performed and materials furnished by defendant in the construction of a stone foundation on premises located in Bel-Nor on Natural Bridge road. The action was commenced before a justice of the peace, whence it went on appeal to the circuit court. The trial, with a jury, in the circuit court, resulted in a verdict and judgment for defendant. From the order of the circuit court granting plaintiff a new trial, on the ground that the court erred in the giving of defendant's instruction No. 4, defendant has appealed to this court.

The evidence shows that the contract price for the stonework in question was $2,952, and that plaintiff made payments to defendant on account of said work in amounts aggregating $3,452. These payments were made by checks, which were put in evidence. Plaintiff testified that these checks were given on account of this stonework. Defendant admitted that he received these checks and cashed them. His written bid, on which the stonework was let to him, was in evidence, and amounted to $2,952. Plaintiff testified that through inadvertence one check for $500 was not entered on the ledger, and that this accounted for the overpayment being made. The overpayment was discovered by an audit of defendant's account. Upon the discovery of the overpayment a conference was had at plaintiff's office, and the books and papers were gone over by plaintiff and defendant and plaintiff's bookkeeper. Plaintiff and his bookkeeper testified that at this conference defendant admitted that he had been overpaid in the amount of $500, and promised to pay same. Defendant, however, testified that at this conference he denied that he had been overpaid, but that he told plaintiff that if he owed him anything he would pay it. He testified that he kept records of payments made to him by the plaintiff while the job was being done, but that as soon as the work was completed and he had been paid in full he destroyed his records, as he then had no further need for them. He testified that he had done business with plaintiff over a period of several years; that he submitted bids on work and received the contracts from the plaintiff; that customarily he would receive payments from plaintiff after the work had been begun; and that at the completion of the work he would receive the balance and give a receipt in full. He denied that any overpayment had been made.

Defendant's instruction No. 4, for the giving of which the court granted plaintiff a new trial, is as follows: "The court instructs the jury that the mere fact that plaintiff has brought this suit is in itself no evidence of any debt on the part of defendant, but, on the contrary, plaintiff must by the evidence show that the defendant is indebted to the plaintiff."

We can see no useful purpose that could have been served by this instruction. Defendant's given instruction No. 3 advised the jury that the burden of proof was on the plaintiff to establish by a preponderance or greater weight of the evidence the facts necessary to a verdict in his favor, and that unless in the judgment of the jury the evidence appeared to preponderate in...