Pridemore v. Fife

• Decision Date: 06 April 1914
• Citation: 165 S.W. 1155,178 Mo.App. 332
• Parties: MARSHAL PRIDEMORE, Appellant, v. LEON F. FIFE et al., Respondents
• Court: Kansas Court of Appeals

165 S.W. 1155

178 Mo.App. 332

MARSHAL PRIDEMORE, Appellant, v. LEON F. FIFE et al., Respondents

Court of Appeals of Missouri, Kansas City

April 6, 1914

Appeal from Howard Circuit Court.--Hon. A. H. Waller, Judge.

AFFIRMED.

Judgment affirmed.

A. W Walker, R. M. Bagby and Frank Sheetz for appellant.

Samuel C. Major and J. H. Denney for respondents.

OPINION

ELLISON, P. J.

--Plaintiff purchased a jack from defendants for breeding purposes for which he claims the Jack was unfitted and worthless. He brought this action by petition in two counts; the first on a warranty and the second on a charge of fraud and deceit. There was a general verdict for plaintiff in the trial court, without naming upon which count it was found. Afterwards, on defendant's motion, a new trial was granted, several reasons being assigned therefor by the court. Plaintiff appealed from that order.

Among other reasons as to the first count, the court stated that the verdict was against the weight of the evidence. When such reason is given the rule is that the action of the court will not be disturbed on appeal, if there is any substantial evidence in favor of the party obtaining the new trial, or, expressed differently, where there is any substantial evidence against the verdict. [Karnes v. Winn, 126 Mo.App. 712, 105 S.W. 1098; Van Hoose v. Machinery Co., 169 Mo.App. 54, 154 S.W. 165; Cunningham v. Atterbury, 163 Mo.App. 594, 147 S.W. 495.] So, therefore, looking alone to the first count of the court's order cannot be disturbed.

At the close of the evidence defendant endeavored to have the court require plaintiff to elect on which count he would go to the jury. The court refused the request, and, as above stated a general verdict followed, and this the court assigned as an error and one of the causes for a new trial. One count was ex contractu on the warranty; while the other was ex delicto, on the fraud and deceit. They should not have been joined in same petition. [Jamison v Copher, 35 Mo. 483; Scott v. Taylor, 231 Mo. 654, 132 S.W. 1149.] Plaintiff seeks to discredit the authority of these cases by the statement that the first was dictum and the last was merely the view of one judge, the other members of the court refusing to concur. If the first case was dictum, it is supported by the last; and we do not find the last to be questioned by any member of the court. There was a separate opinion in the case, but save in...