Plunkett v. Parkin, 16242

• Decision Date: 30 April 1990
• Docket Number: No. 16242,16242
• Citation: Plunkett v. Parkin, 788 S.W.2d 356 (Mo. App. 1990)
• Parties: Michael James PLUNKETT, Plaintiff-Appellant, v. Jerry PARKIN and Don Parkin d/b/a Parkin Pump and Water Service, Defendants-Respondents.
• Court: Missouri Court of Appeals

Page 356

788 S.W.2d 356

Michael James PLUNKETT, Plaintiff-Appellant, v. Jerry PARKIN and Don Parkin d/b/a Parkin Pump and Water Service, Defendants-Respondents.

No. 16242.

Missouri Court of Appeals,

Southern District,

Division One.

April 30, 1990.

Gerald Meyr, W. Robert Cope, Summers, Cope & Walsh, Poplar Bluff, for plaintiff-appellant.

W. Dean Million, Poplar Bluff, for defendants-respondents.

PREWITT, Judge.

Plaintiff claimed defendants breached an oral contract to dig a well on plaintiff's property because the water from the well was of insufficient quality and quantity. Following nonjury trial judgment was entered for defendants. Plaintiff appeals.

Here, plaintiff contends that the trial court's judgment was against the weight of the evidence and the trial court erroneously applied the law "in that the plaintiff produced substantial evidence that the defendant first, contracted to produce a water well which would supply water of a good, useable quality and in sufficient quantities to supply the household needs of the plaintiff, and second, the defendant produced substantial evidence that said well failed to produce".

Review is under Rule 73.01(c). As that rule is interpreted in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we are to affirm the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or erroneously applies the law. Under that holding we are to set aside a judgment because it is against the weight of evidence only with caution and "with a firm belief that the decree or judgment is wrong." Id.

"Weight of the evidence" means its weight in probative value, not its quantity. Looney v. Estate of Eshleman, 783 S.W.2d 164, 165 (Mo.App.1990). "The weight of evidence is not determined by mathematics, but on its effect in inducing belief." Id.

On appellate review of a case tried without a jury, "[d]ue regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses." Rule 73.01(c)(2); Centennial Insurance Co. v. International Motor Car, 581 S.W.2d 883, 885 (Mo.App.1979). The trial judge as the trier of fact can disbelieve testimony even where uncontradicted. Robinson v. Estate of Robinson, 768 S.W.2d 676, 677 (Mo.App.1989).

No findings of fact were requested and as the trial court did not make any, all fact issues are determined in accordance with the court's judgment. Rule 73.01(a)(2); Young v. Ray America, Inc., 673 S.W.2d 74, 78 (Mo.App.1984).

There was no evidence that defendants improperly drilled or constructed the well. Plaintiff's theory was that defendants in effect warranted that there would be sufficient quantity and quality of water for residential use and that neither occurred. The exact terms of the agreement were in dispute. Defendant Jerry Parkin who made the agreement with plaintiff testified that the drilling was only warranted that if it "was done wrong or improperly, it would be repaired for no cost" and that there would be sufficient quantity of water provided to plaintiff's home. He claimed that there was no promise as to the quality of the water. Defendants also denied that the water was insufficient or improper for residential use and contended that their examinations of it showed that the water was adequate in quantity and quality.

The well was finished in September or October 1986. Plaintiff made no payment to defendants until April 1987. He was billed $5,921.51 for the well and paid $5,721.51. With that payment was sent a note from plaintiff and his ex-wife which stated:

Enclosed is our check for $5,721.51. As you can see, there is a difference of $200.00 in this and...