Phillip v. Biernacki

• Citation: 272 S.W. 707
• Decision Date: 04 May 1925
• Docket Number: No. 15319.,15319.
• Parties: PHILLIP v. BIERNACKI et al.
• Court: Court of Appeal of Missouri (US)

272 S.W. 707

PHILLIP v. BIERNACKI et al.

No. 15319.

Kansas City Court of Appeals. Missouri.

May 4, 1925.

Rehearing Denied May 25, 1925.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Replevin by Ben Phillip against Frank Biernacki and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Culver, Phillip & Voorhees, of St. Joseph, for appellant.

Horace Merritt, of St. Joseph, for respondents.

ARNOLD, J.

This is a suit in replevin for possession of a couch and involves the question of an artisan's lien in the amount of $6.50. It is admitted that plaintiff is the owner of the couch, and the sole question is whether or not defendants have an artisan's lien for repairs made upon it which entitles them to retain possession until said charge is paid.

The suit was instituted in the court of a justice of the peace by an action in replevin. A redelivery bond was given and on trial the judgment was for defendants. Plaintiff appealed to the circuit court of Buchanan county, where there was a trial de novo, resulting in judgment for defendants, and plaintiff perfected an appeal to this court.

The facts, as revealed by the record, are that plaintiff purchased the couch from a friend. Knowing plaintiff's wife desired the couch re-upholstered, the seller sent it, with another piece of furniture, to defendants. This act was approved by the wife of plaintiff.

It is the theory of defendants that the couch was "all rickety and loose," that it needed to be glued and tightened before it could be properly upholstered, and plaintiff's wife was informed of this fact; that the repairing was done at a labor cost of $6.50; that defendants were to upholster the couch when plaintiff's wife selected the materials from defendants' stock; that after the said repairs were made the wife of plaintiff found the materials desired at the Leader Department Store and learned that if the materials were purchased at that store the work of upholstering would be done by that concern free of charge. She then sought to have the couch taken to the Leader for that purpose and demanded possession of it from defendants. Said demand was refused unless the charge of $6.50 for repairs was paid.

Plaintiff's version is that the couch was not in need of repairs and that no repairs, in fact, were made; that defendants were never directed to make any repairs; that plaintiff's wife desired to have the couch covered with silk and informed defendants that she had seen some silk in the Leader Department Store window which she thought she would like; that defendants showed her samples of velour which she did not want and that she inquired whether it would be satisfactory to them if she bought the material at the Leader and let them put it on; that she was told by defendants that this arrangement would be satisfactory to them; that when she went to the Leader to buy the material, she was told they would not charge for the work of re-upholstering, if she bought the material of them; that she informed defendants of this fact and demanded the couch of them, which request was refused; that defendants then told her and plaintiff there was a charge of $6.50 for "waiting on Mrs. Phillip," and this would have to be paid before they would surrender the couch; that plaintiff then told defendants' representative that he would "see him in hell before the would pay him for waiting on her." This suit was then instituted as above stated. It is also plaintiff's position that defendants made no claim that they had repaired the couch, prior to the institution of this suit, and that $6.50 was due therefor. Defendants, however, claim the repairs were necessary, that they were made, and that plaintiff was so informed. Evidence produced in support of the contentions of each party is flatly contradictory as to the material facts.

The motion for a new trial embraces all the points upon which plaintiff depends for a reversal. It is urged that the verdict was the result of bias, passion, and prejudice on the part of the jury, and that it was based on perjured testimony. The rule is that where an appellate court is convinced from an examination of the evidence that the verdict is the result of passion or prejudice, and not of judgment, it is not bound by the action of the trial court in overruling a motion for a new trial, but that in such circumstances the verdict may be set aside and a new trial granted. However, this may not be done merely upon the ground that the verdict is against the greater weight of the evidence, since questions as to the weight and preponderance of the evidence are peculiarly and entirely for the determination of the jury. Mann v. Weiss, 185 Mo. App. 335, 170 S. W. 355; Lehnick v. Street RT, Co., 118 Mo. App. 611, 94 S. W. 996. We have carefully examined the record before us and fail to find a situation which would bring this case within the above rule. In the Mann Case, it was held, loc. cit. 344 (170 S. W. 357):

"On such conflicting evidence the case was absolutely one for the jury. Because it accepted and acted on one version rather than on the other affords no evidence of prejudice or passion sufficient to warrant us in disturbing the verdict."

We see in the record before us only contradictory evidence. There was substantial evidence in support of defendants' theory of the case, and in this situation we are not warranted in disturbing the verdict. This rule is elemental, and citations in support thereof are unwarranted.

On the question of perjured testimony, plaintiff attempts to support his position by...