Trent v. Barber

• Decision Date: 16 January 1933
• Docket Number: No. 5068.,5068.
• Citation: 56 S.W.2d 151
• Parties: TRENT v. BARBER.
• Court: Missouri Court of Appeals

56 S.W.2d 151

TRENT v. BARBER.

No. 5068.

Springfield Court of Appeals. Missouri.

January 16, 1933.

Appeal from Circuit Court, Newton County; Emory E. Smith, Judge.

"Not to be reported in State Reports."

Action by Jess Trent against M. A. Barber. Judgment for defendant, and plaintiff appeals.

Affirmed.

Leo H. Johnson, of Neosho, for appellant.

Thomas M. Saxton, of Neosho, for respondent.

BAILEY, J.

This suit was instituted in circuit court to recover the sum of $55 for labor and use of an ensilage cutter owned by plaintiff. On a trial to a jury, verdict was for defendant, and plaintiff, after filing an unsuccessful motion for new trial, has appealed to this court.

Plaintiff takes the position that, while it is the peculiar province of the trial court to award or refuse a new trial on the ground that the verdict is against the weight of the evidence, yet, where there is no substantial evidence to support the verdict, the appellate court has the right and will interfere.

The rule is that in ordinary cases at law the appellate court will not weigh the evidence, but in extreme cases, where there is no substantial evidence to support the verdict, or the verdict is so strongly opposed to reason as to manifest passion or prejudice on the part of the jury, the appellate court will not hesitate to interfere, whether the verdict be for plaintiff or defendant. Caruth v. Richeson, 96 Mo. 186, 9 S. W. 633; Whitsett v. Ransom, 79 Mo. 258; Yarber v. Connecticut Fire Ins. Co. (Mo. App.) 10 S.W.(2d) 957.

But in our opinion this appeal presents no such state of facts as would justify our interference with the trial court's discretion in overruling plaintiff's motion for new trial. Looking to defendant's evidence, it appears that plaintiff, defendant, and one Robinson were farmers and neighbors. Plaintiff and Barber each had silos of about the same size, while defendant had none. He contemplated, however, building two, but afterward built but one. It also appears that plaintiff owned an ensilage cutter, Robinson owned horses and wagons, and defendant owned a tractor. They got together and decided to exchange work and use of machinery and thereby fill the silo of each party concerned. In regard to the contract defendant testified as follows:

"It was agreed that Mr. Trent would furnish a cutter and one man and I would furnish my tractor and one man, and Mr. Robinson would furnish two men and two teams, to fill each one's silo.

"I was figuring on building two silos when I first talked to him. He asked me the size and I told him sixteen feet. He asked me where I would get enough corn to fill it. I told him I didn't know how much corn it would take. He said I didn't have enough corn to fill one. Anyway I built one silo sixteen and a half feet in diameter and forty feet high. I knew nothing about swapping work. I figured that if I furnished the tractor that cost me over a thousand dollars, and one man, against an ensilage cutter that cost about three...