McKee v. Verdin

• Decision Date: 21 October 1902
• Citation: 70 S.W. 154,96 Mo. App. 268
• Parties: McKEE v. VERDIN.
• Court: Missouri Court of Appeals

70 S.W. 154

96 Mo. App. 268

McKEE v. VERDIN.

Court of Appeals at St. Louis, Missouri.

October 21, 1902.

APPEAL—REVIEW—TRIAL BY JURY—PREPONDERANCE OF EVIDENCE—BURDEN OF PROOF.

1. Where the issue of an action for the recovery of money depends entirely upon the decision of a question of veracity between two adverse parties, an appellate court will not review the findings upon the weight of the evidence, where there is testimony to support the result.

2. An action to recover money loaned is triable by jury, under section 691, Rev. St. 1899; and where a jury is waived the judge has full power to pass on the weight of the evidence.

3. The "preponderance of evidence" means that the testimony on the issue in question appears more credible than the testimony to the contrary. It does not necessarily depend on the number of witnesses.

4. The burden of proof is on plaintiff in an action for money loaned, but evidence tending to prove his allegations discharges the burden, if credited by the trior of the fact.

(Syllabus by the Court.)

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by J. E. McKee against John N. Verdin. Judgment for plaintiff, and defendant appeals. Affirmed.

Eugene McQuillan, for appellant. Chas. R. Watson, for respondent.

BARCLAY, J.

This is an action begun before a justice of the peace on an account for $300 and interest. Plaintiff charges that defendant borrowed that sum from him, and did not repay it. There was a judgment for plaintiff in the justice's court. Defendant appealed. The cause was tried anew before Judge Spencer, a jury having been waived. The learned judge found for the plaintiff, and gave judgment for $307.35 accordingly, expressing his views of the controversy as follows: "The testimony in this case is directly contradictory. The plaintiff testifies in January, 1900, he was with the defendant on a certain evening in a saloon at Vandeventer and Finney avenues, and while he was eating lunch in a rear room with a Mr. Ghio the defendant came in and said he wanted some money, and thereupon the plaintiff handed the defendant $300, for the recovery of which this suit is brought. The defendant agrees with the plaintiff in his statement concerning their companionship on the evening in question, but denies that he there requested a loan of plaintiff, or that he received any money from him. The burden of proof is upon the plaintiff to establish the truth of his claim by a preponderance of the evidence, and in cases of this sort, where no memorandum of the debt is shown, and where everything depends on the recollection of the parties, the proof of the plaintiff should be clear. The plaintiff, so far as the evidence is concerned, has thus established his claim. Mr. Ghio positively corroborates him, both as to the fact and amount of the loan which it is alleged was made to the defendant. The defendant, while he does not recollect the borrowing of any money from the plaintiff, testifies that he was on this occasion gambling with dice, and that he had not more than $75 when he commenced to gamble, and that he played as high as $125 a throw, and that at the close of the playing he had lost $75. He also testified that on other occasions prior to this occasion he had borrowed of plaintiff various sums in different amounts, once sending a check of $360 in payment of his indebtedness. Under these facts, both the positive testimony of the plaintiff and Mr. Ghio, and the corroborating circumstances of the occasion as narrated in the evidence, show that the plaintiff is, in all probability, right in his recollection of the affair. The judgment will be for the plaintiff." Defendant moved for a new trial, assigning as ground for the motion that the finding was "against the evidence" and "against the overwhelming weight of the evidence." The motion was overruled. Defendant appealed, after saving exceptions in the customary way.

1. The...