Warner v. Michel

• Decision Date: 02 November 1909
• Citation: 122 S.W. 338,143 Mo. App. 131
• Parties: WARNER et al. v. MICHEL et al.
• Court: Missouri Court of Appeals

122 S.W. 338

143 Mo. App. 131

WARNER et al. v. MICHEL et al.

St. Louis Court of Appeals. Missouri.

November 2, 1909.

1. TRIAL (§ 156) — OVERRULING DEMURRER TO EVIDENCE.

Overruling a demurrer to plaintiff's evidence means only that as a matter of law there is some evidence to be weighed; so that there is no incongruity in doing so, and then finding for defendant on an equity count, and setting aside the verdict for plaintiff on a count at law, and granting a new trial thereon, this meaning that the evidence, when weighed by the court, was unsatisfactory.

2. NEW TRIAL (§ 72) — WEIGHT OF EVIDENCE.

The evidence being conflicting, the trial court, considering the verdict contrary to the weight of evidence, could set it aside, and grant a new trial.

Appeal from St. Louis Circuit Court; O'Neill Ryan, Judge.

Action by Franceska Warner and another against Frank H. Michel and others. From an adverse judgment and orders, plaintiffs appeal. Affirmed.

The petition in this case contains two counts, the first asking the cancellation of the record of a certain deed of trust given by plaintiffs, it being averred that the debt secured thereby had been paid and discharged in full, and that the plaintiffs had tendered the necessary fee fixed by law to entitle them to have the satisfaction of the deed of trust indorsed on the record thereof. In the second count, averring the payment of the debt secured by the deed of trust in full and the tender of the legal fee for the release thereof on the margin of the record, along with a demand that the release be indorsed, and averring the refusal of the defendants to release the deed of trust of record, plaintiffs demand the statutory penalty of 10 per cent. of the debt as damages for failure so to do. The answer admitted the execution of the notes and deed of trust, but denied all other allegations in the petition. The petition embracing legal and equitable causes of action in separate counts, by stipulation of parties and consent of the court both counts were tried at one and the same time, a jury being impaneled to try the issue involved in the second count of the petition, the court hearing the evidence as chancellor, so far as it related to the first count. At the conclusion of the trial, the court found in favor of defendants on the first count, thus holding that the plaintiffs were not entitled to have the deed of trust released of record. On the second count, however, the jury returned a verdict in favor of plaintiffs for $150 damages for the defendants' failure to release the deed of trust of record. Both parties filed motions for new trial, and the court sustained the defendants' motion for a new trial of the second count, but overruled the plaintiffs' motion for a new trial of the first count, whereupon plaintiffs duly perfected an appeal to this court. It is not necessary to go over the testimony in this case any further than to state that it appears that, subsequent to the giving of the deed of trust which secured a note given by plaintiffs for $1,500, one of the plaintiffs, John Warner, the husband of the other, went to the office of Hammell & Karleskind, real estate agents, who are two of the defendants here, and, talking about the debt, was told that he and his wife owed the firm $65 for commissions in placing this loan, which it seems was a renewal of a former loan on the same property. Whereupon John Warner gave his note for the $65. The secured loan not being paid when due, and plaintiffs having been notified that the holder of the note desired payment, the property was advertised for sale; the note not having been paid. Before the advertised sale took place, Mrs. Warner went to the office of...