Newland College of Obstetrics & Lying-In Institute v. Borck

Rombauer, P. J. The plaintiff sued the defendant before a justice for $80 tuition fee of the defendant’s niece, claiming that the tuition was given upon the defendant’s express promise to pay for the same. The defendant denied the promise, and filed a counterclaim for $190, which he claimed wa,s due to him as a balance for lectures delivered in plaintiff’s college at its request. Upon appeal in the circuit court such proceedings were had that, upon a trial of the cause before the court without a jury, judgment was rendered in favor of the [21] defendant in the main action, and against the defendant on his counterclaim. From this judgment the plaintiff alone appeals. The errors assigned are that the court ruled out competent evidence offered by the plaintiff, and that the judgment is opposed to the evidence. Neither of these assignments are tenable. The evidence rejected had reference to the counterclaim only, and, as the plaintiff was successful on that, it is wholly immaterial whether -or not it was entitled to the admission of additional evidence in support of its defense. Touching the defendant’s promise the evidence was conflicting, and with its weight we have nothing to do. Appellate courts will interfere and grant a new trial in cases wherein the evidence of the successful party admits only of one inference, which is contrary to the verdict rendered, as in Rottman v. Pohlman, 28 Mo. App. 399 ; or where it is against the conceded facts, as in Ackley v. Staehlin, 56 Mo. 558 ; or where it is contrary to documentary evidence as in Henry v. Bell, 75 Mo. 194 ; or where there is no evidence to support it, as in Wilson v. Albert, 89 Mo. 537; or where it is so opposed to the evidence and all probabilities as to be the evident result of prejudice or mistake, as in Spohn v. Railroad, 87 Mo. 74. But they can in no case grant a new trial on the sole ground that in their opinion the verdict is opposed to the weight of the evidence. Judgment affirmed. All the .judges concur.