Crawford v. Charlie Moore Tire & Service Center, Inc.

SMITH, Judge. Plaintiff appeals from a jury verdict and subsequent judgment finding against plaintiff on his petition and awarding defendant $1800. on its counter-claim. Plaintiff’s claim was premised on defendant’s failure to pay him in full for work performed under a construction contract. Defendant contended that the work was not fully performed, that some of the performance was unworkmanlike, and that he was damaged by plaintiff’s breach. There was evidence to support either party. On appeal plaintiff raises three claims of plain error. The first, that the evidence was insufficient to support the verdict, is based upon plaintiff’s challenge to the weight, not the sufficiency, of that evidence. Weight is a matter for the jury not the appellate court. Borden v. Phillips Petroleum Co., 541 S.W.2d 53 (Mo.App.1976) [2, 3]. The second contention challenges portions of the defendant’s argument to the jury which were not erroneous much less plainly erroneous. The third premises error on the failure of the trial court to give an instruction on mitigation of damages. Under the facts mitigation was not an issue and no instruction was required. The damages awarded by the jury to defendant were in accord with the evidence presented and there .was no manifest injustice in the award. An extended opinion would have no precedential value and no error of law appears so we affirm in compliance with Rule 84.16(b). PUDLOWSKI, P.J., and KELLY, J., concur.