National Fireproofing Corporation v. Roberts

• Decision Date: 04 March 1935
• Docket Number: No. 5353.,5353.
• Citation: 80 S.W.2d 243
• Parties: NATIONAL FIREPROOFING CORPORATION v. ROBERTS et al.
• Court: Missouri Court of Appeals

80 S.W.2d 243

NATIONAL FIREPROOFING CORPORATION v. ROBERTS et al.

No. 5353.

Springfield Court of Appeals. Missouri.

March 4, 1935.

Appeal from Circuit Court, Pulaski County; J. H. Bowron, Judge.

"Not to be reported in State Reports."

Action by the National Fireproofing Corporation against M. F. Roberts and others, trading and doing business as the Roberts-Judson Lumber Company, in which an unsatisfactory verdict was had for plaintiff. From an order granting plaintiff a new trial, defendants appeal.

Affirmed and remanded.

Earl E. Roberts, of Steelville, for appellants.

Wm. R. Lay, of Steelville, for respondent.

ALLEN, Presiding Judge.

Respondent in this case sued the defendant (appellant) for the sum of $863.45, alleged to be a balance due on account. The verdict was for respondent in the sum of $297.08.

Respondent's petition alleged that appellant purchased merchandise of respondent in the value of $3,284.57, alleging payment thereof of $2,421.12, leaving a balance due respondent in the sum of $863.45.

Appellant's answer denied ordering two cars of material set out in respondent's itemized statement, and alleged that it had received $354.72 for tile sold for respondent and had tendered said sum to it, which is alleged to have been refused.

The appellant also made claim for drayage and storage of two cars of tile, setting up a counterclaim for freight of $263.37, drayage $75, and storage $72.

A demurrer was offered by appellant and refused by the court, and the court thereupon gave the following instruction: "The court instructs the jury that if you believe and find from the evidence that the defendant ordered the material obtained in the plaintiff's statement of account, and that same was furnished by plaintiff to defendant, at Steelville, Missouri; and if you further find that there is a balance due the plaintiff for such material, you will find the issues for the plaintiff in such sum as you find is due the plaintiff."

The defendant thereupon asked the court for certain instructions, which were by the court refused.

The evidence upon the part of respondent was, in substance, as follows:

M. M. Coates, salesman for respondent company, testified that he sold defendant tile for use in the construction of three buildings at Steelville, Mo., in the years 1927 and 1928; that he estimated the material necessary for the construction of the buildings as nine cars; that the first seven were paid for; that a change in plans was made by one S. H. Halbert, for the construction of one of the buildings, and the two cars were left over; that the manager of appellant company informed the witness that he (the manager) knew nothing about the estimate of the amount of material necessary, and that he would leave that to witness (salesman), but that he did not want any large amount left over — not more than a half car. Witness denied that defendant had ever refused the two cars or that he had ever told appellant's manager to go ahead and unload them and he would help get rid of the tile down the line.

T. H. Roberts, manager of appellant company's Steelville store, testified that on the trip to Kansas City, mentioned, and on other occasions, he had made known to the respondent's salesman that the salesman was to estimate and ship the amount of material necessary, that he refused the cars after they came, and that the salesman told him to go ahead and unload the tile.

S. H. Halbert testified that he was present when the manager of the appellant company told respondent's salesman of the excess and refused to accept it, and that the salesman told him to go ahead and unload it and he would get rid of it down the line for him, which Coates, the salesman for respondent, denied, and denied that he had told Mr. Roberts, manager of appellant company, to go ahead and unload them and that he would help get rid of the tile down the line. Two of appellant's assignments of error were as follows:

(1) That "the court erred in granting a new trial on grounds not complained of in the Motion for a New Trial at a term subsequent to the judgment term."

(2) That "the court erred in setting aside the verdict and granting a new trial at a term subsequent to the judgment term, on grounds not included in the Motion."

Respondent's motion for a new trial was in part as follows:

"2nd. Because the verdict of the jury is entirely against the law and the evidence applied in this cause.

"3rd. Because the verdict of the jury is against the evidence and against the preponderance of the evidence and the issues should have been found for the plaintiff, for the total sum sued on."

Respondent's motion for a new trial, being continued to the succeeding term, to wit, the 23d day of March, was by the court sustained, without giving any reason or ground for sustaining said motion.

It will be observed that respondent's motion for a new trial was because the verdict of the jury is entirely against the law and the evidence; because the verdict of the jury is against the evidence and against the preponderance of the evidence.

Each of the above grounds alleged in respondent's motion for a new trial is clearly equivalent to the ground that the jury's verdict was against the weight of the evidence.

In Missouri, where the trial court grants a new trial, without specifying the grounds therefor, the order will be sustained, if it ought to be sustained, upon any ground set forth in the motion. If the motion for a new trial mentions the ground that the verdict is against the weight of the evidence and the court does not specify in the order why the new trial was granted, the presumption will be that the court awarded the new trial on that ground.

In the case of Harris v. McQuay (Mo. App.) 242 S. W. 1011, the court said: "Section 1454, R. S. 1919 [now section 1003, R. S. 1929 (Mo. St. Ann. § 1003, p. 1269)], makes it the duty of the trial court to specify of record the ground or grounds on which said new trial is granted, and this statute should be followed. However, the failure of the trial court to specify such grounds does not invalidate the order granting a new trial, where no such grounds are specified. The motion for new trial alleges, as one of the reasons why the new trial should be granted, that `the verdict and judgment are against the evidence.' An assignment that the `verdict is against the evidence,' means merely that the `verdict is against the weight of the evidence'" — citing Raifeisen v. Young, 183 Mo. App. 508, 167 S. W. 648; Lackland v. United Railways Co., 197 Mo. App. 62, 191 S. W. 1104, Phelps v. Dockins (Mo. App.) 234 S. W. 1022.

If the motion for a new trial alleges the ground that the verdict is against the weight of the evidence and the court does not specify in the order any other reason why a new trial is granted, the presumption will be that the court awarded the new trial on that ground. Jiner v. Jiner, 182 Mo. App. 153, 168 S. W. 231; First Nat. Bank v. Wood, 124 Mo. 72, 27 S. W. 554.

"The matter of granting a new trial on the ground that the verdict is against the weight of the evidence, being within the sound discretion of the trial court, its action will not be disturbed, unless it appears that no verdict in favor of the party asking such new trial would ever be permitted to stand." Harris v. McQuay (Mo. App.) supra, 242 S. W. loc. cit. 1012.

In the case of King v. Mann, 315 Mo. 318, 286 S. W. 100, loc. cit. 103, the Supreme Court sai...