Title Guaranty & Surety Company v. Drennon
| Decision Date | 13 June 1914 |
| Citation | 167 S.W. 1181,181 Mo.App. 198 |
| Parties | TITLE GUARANTY & SURETY COMPANY, Appellant, v. WILLIAM E. DRENNON, et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jos. A. Guthrie, Judge.
AFFIRMED.
Judgment affirmed.
Frank M. Lowe for appellant.
(1) It is the duty of this court to set aside the order of the lower court in granting a new trial herein and to direct the trial court to re-instate the judgment as entered by it in said cause, for the reason that under the evidence in this case there can be but one finding and that for plaintiff. Foley v. Harrison, 233 Mo. 506; Smoot v. Kansas City, 194 Mo. 532; Casey v. Trans. Co., 186 Mo 232; Fitzjohn v. Trans. Co., 183 Mo. 78-79-80. (2) A principal will not be considered as having ratified an unauthorized act of his agent merely because he receives property and avails himself of the advantages derived from such act when he did not learn that such agent had exceeded his authority until after he had sold the property and after the circumstances were such as to put it beyond his power to return or restore the property. 26 Me. 84; 113 Mass. 291, 58 Ark. 20; Quoted from 41 S.W. 852, Martin v. Hickman.
Boyle & Howell and Jos. S. Brooks for respondents.
(1) The court did not err in granting a new trial on the ground that the findings and judgment were against the evidence and against the weight of the evidence. Tipton v Christopher, 135 Mo.App. 619, 623; Hax-Smith Furniture Co. v. Toll, 133 Mo.App. 404-411. (2) Where a jury is waived in a law case and the issues of fact are submitted to the court all presumptions on appeal are in favor of the correctness of the findings of the court upon the questions of fact involved. Bond and Stock Co. v. Houck, 213 Mo. 416-426; Glade v. Ford, 131 Mo.App. 164, 169; McCormack v. Moore, 134 Mo.App. 669, 675; Kneisley Lbr. Co. v. Stoddard Co., 131 Mo.App. 15, 26; Rice v. Wade, 131 Mo.App. 338; Hammett v. Railroad, 128 Mo.App. 1; Vincent v. Means, 207 Mo. 709.
In this case plaintiff, a surety company, sued its agents for damages alleged to have been caused by the latter exceeding their authority in signing a judicial bond. The company obtained judgment. Thereupon defendants filed a motion for new trial which the court sustained "for the reason that the finding and judgment was against the evidence and against the weight of the evidence." Plaintiff appealed.
The judgment of the trial court in granting a new trial must be affirmed. Where the trial court exercises its discretionary power of setting aside a judgment on the ground that it is against the weight of the evidence its action in so doing will not be reviewed except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand. [Casey v. St. Louis Transit Co., 186 Mo. 229, l. c. 232; Fitzjohn v. St. Louis Transit Co., 183 Mo. 74, l. c. 78.]
Plaintiff claims that is precisely the situation here; that the evidence clearly shows that defendants are liable. Plaintiff's case does not rest entirely upon defendants' admissions, however. It rests to some extent upon plaintiff's testimony. To entitle plaintiff to a judgment this must be believed by the trier of the fact. But the trier of the fact has said the finding is against the weight of the evidence. If plaintiff had been granted a new trial and defendants were claiming that no verdict for plaintiff could ever be allowed to stand, this court might very well pay heed to the claim if, after admitting everything plaintiff claimed, no case appeared. In that case no new trial should be granted. It is different, however, when defendant is granted a new trial.
But on the theory that defendants' admissions and testimony may be sufficient to authorize a judgment as a matter of law, still plaintiff has not shown such to be the case. The evidence itself is not presented in full to this court. It is only plaintiff's conclusion as to what that evidence is that has been presented. Before the appellate court could pass on the correctness of the action of the trial court in granting a new trial on the ground assigned, the abstract should contain the entire evidence as given at the trial. [Moore v. Harmes, 123 Mo.App. 34, l. c. 35; Schoen Plumbing Co. v. Empire Brewing Co., 126 Mo.App. 268, l. c. 270 and cases cited.]
It is true that, as between the principal and his agent, much more is necessary to show ratification than is required to constitute ratification as between the...
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