Weisguth v. Burke
| Citation | 138 S.W.2d 689 |
| Decision Date | 02 April 1940 |
| Docket Number | No. 25347.,25347. |
| Parties | WEISGUTH v. BURKE. |
| Court | Court of Appeal of Missouri (US) |
Appeal from Circuit Court, St. Louis County, Division No. 1; Julius R. Nolte, Judge.
"Not to be reported in State Reports."
Suit by Roy J. Weisguth, doing business as the Lynn Liquor Company, against Thomas A. Burke, doing business as Burke's Buffet, on an account for wines and liquors plaintiff claimed to have sold and delivered to defendant. From judgment for plaintiff, defendant appeals.
Affirmed.
Edwin Rader, of Clayton, for appellant.
Paul Dillon and Maurice Schechter, both of St. Louis, for respondent.
This is a suit on an account. A jury being waived, the case was tried before the court, resulting in a finding and judgment for plaintiff in the sum of $1,175.11. No declarations of law or findings of fact were requested or given. The account is for wines and liquors plaintiff claims to have sold and delivered to defendant between November 7, 1934, and December 13, 1934. Plaintiff was in the wholesale liquor business, and defendant conducted a tavern under the trade-name of Burke's Buffet. For some time before and after the above dates defendant purchased wines and liquors from plaintiff for which he paid, but defendant claims that between the above dates the wines and liquors for which he is now sued were sold to one Bert Cohn, who was a sales manager for plaintiff, and who had entered into an agreement with defendant whereby he had rented the package liquor business in the tavern, and was between said dates conducting that business and incurred the account sued on, and the only interest defendant had in that business was that he received 50% of the profits.
Plaintiff's evidence was to the effect that both before and after the period between November 7th and December 13th, wines and liquors were sold and delivered to the defendant's place of business, that it was always charged to defendant on his books of account, and that all delivery tickets were signed by defendant or some employee about his place, that defendant paid all of the account except for goods delivered during said period, that plaintiff knew of some arrangement between defendant and Cohn about profit sharing on package liquor sales, and that Cohn had no license to sell liquor but the same was sold under a license in defendant's name and the business was always conducted under defendant's trade-name.
The view we take of the case is that the only question presented by the appeal is whether there was any substantial evidence to support the verdict of the court, as defendant's evidence cannot be considered on appeal from a judgment for plaintiff on a verdict. Dell v. J. A. Schaefer Const. Co., Mo.Sup., 29 S.W.2d 76. There can be no question but that there was substantial evidence to support the verdict or finding of the court. Defendant held the license to sell the liquor it was sold in his place of business and under his trade-name, there was no direction to plaintiff to change...
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...evidence to support the judgment on any theory. Brooks v. McCray, 145 S.W.2d 985; Mederacke v. Friesenham, 145 S.W.2d 461; Weisguth v. Burke, 138 S.W.2d 689; Pfenninger Brevard, 129 S.W.2d 924; Seneca v. Missouri Co., 119 S.W.2d 991; Paulette v. Sernes, 103 S.W.2d 573; Cave v. Missouri Insu......
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...the express provisions of Sec. 472.250 which authorized a trial de novo upon such an appeal. The case cited by appellants, Weisguth v. Burke, Mo.App., 138 S.W.2d 689, has nothing to do with probate appeals and is not remotely in Appellants also assert under Points and Authorities, but witho......
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......(5) When a judgment cannot be substantiated by. the evidence and is incorrect as a proposition of law the. judgment should be reversed. Weisguth v. Burke, 138. S.W.2d 689; State v. Kelly, 131 S.W.2d 371;. Paulette v. Sernes, 103 S.W.2d 573; Paulson v. Hartzel, 93 S.W.2d 1095; Globe ......
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...weight of the evidence. We cannot notice this assignment for an appellate court in a law case cannot weigh the evidence. Weisguth v. Burke, Mo.App., 138 S.W.2d 689. Appellant next complains of instruction number one given at the request of plaintiff. This instruction tells the jury that if ......