Title Guaranty & Surety Co. v. Drennon

TRIMBLE, J. In this case plaintiff, a surety company, sued its agents for damages alleged to have been caused by the latter exceeding their authority in [201] signing a judicial bond. The company obtained judgment. Thereupon defendants filed a motion for new trial which the court sustained “for the reason that the finding and judgment was against the evidence and against the weight of the evidence.” Plaintiff appealed. The judgment of the trial court in granting a new trial must be affirmed. Where the trial court exercises its discretionary power of setting aside a judgment on the ground that it is against the weight of the evidence its action in so doing will not be reviewed except upon a showing that no verdict in favor of the party to whom the new trial is granted would be allowed to stand. [Casey v. St. Louis Transit Co., 186 Mo. 229, l. c. 232; Fitzjohn v. St. Louis Transit Co., 183 Mo. 74, l. c. 78.] Plaintiff claims that is precisely the situation here; that the evidence clearly shows that defendants are liable. Plaintiff’s case does not rest entirely upon defendants’ admissions, however. It rests to some extent upon plaintiff’s testimony. To entitle plaintiff to a judgment this must be believed by the trier of the fact. But the trier of the fact has said the finding is against the weight of the evidence. If plaintiff had been granted a new trial and defendants were claiming that no verdict for plaintiff could ever be allowed to stand, this court might very well pay heed to the claim if, after admitting everything plaintiff claimed, no case appeared. In that case no new trial should be granted. It is different, however, when defendant is granted a new trial. But on the theory that defendants’ admissions and testimony may be sufficient to authorize a judgment as a matter of law, still plaintiff has not shown such to be the case. The evidence itself is not presented in full to this court. It is only plaintiff’s conclusion as to what- that evidence is that has been presented. Before the appellate court could pass on the [202] correctness of the action of the trial court in granting a new trial on the ground assigned, the abstract should contain the entire evidence as given at the trial. [Moore v. Harmes, 123 Mo. App. 34, l. c. 35; Schoen Plumbing Co. v. Empire Brewing Co., 126 Mo. App. 268, l. c. 270 and cases cited.] It is true that, as between the principal and his agent, much more is necessary to show ratification than is required to constitute ratification as between the principal and third persons dealing with the agent. [31 Cyc., 1266.] But even though an agent has violated his instructions, he will not be liable to the principal if the latter with knowledge of the facts ratifies what is done; and such ratification may be express or implied. [31 Cyc. 1456.] ¥e do not agree with plaintiff in its contention that the course of conduct claimed by defendants to have been pursued, both before and after the signing of the bond in controversy, could not under any circumstances amount to a ratification sufficient to show that what defendants did was in fact by authority even though it had theretofore been formally forbidden. Whether it was so done was a question of mixed law and fact. Where a jury is waived and the issues of fact are submitted to the court all presumptions are in favor of the correctness of the court’s findings upon the questions of fact involved. [Donaldson Bond & Stock Co. v. Houck, 213 Mo. 416.] The court sitting as a jury has the same right to disbelieve the testimony of the witnesses as the jury. [Tipton v. Christopher, 135 Mo. App. 619, l. c. 623.] And the judge sitting as a jury has the same right to change his mind as to the probative force of the testimony, when considering that question on a motion for new trial, as he has to sustain a motion for new trial when the case has been heard by a jury. [Loessing v. Loessmg, 88 Mo. App. 494, l. c. 499.] It follows that the judgment must be affirmed. So ordered. All concur.