Friestatt Milling Co. v. Boggess

BOND, J. Plaintiff sued the defendant for $44, alleged to be due upon a sale of two thousand pounds of flour. [299] Defendant filed a counterclaim for $50, for alleged breach of contract by plaintiff to give him the exclusive right to sell its flour in Stotts City, Missouri. There was a trial before the justice and an appeal from his judgment to the circuit court, where the plaintiff had judgment and the court sustained a motion for new trial, from which defendant appeals. The trial court disregarded its plain statutory duty in omitting to give the reasons for which the new trial was granted, and might have been compelled to comply with the law in this respect by mandamus, if timely application had been made for this writ. Passing, however, to a consideration of the .correctness of his ruling, it is insisted by counsel for tho defendant that it must be sustained on the ground that there was a substantial conflict in the evidence. On this subject the rule is that where, as in this case, one of the grounds of the motion for new trial is that the verdict is against the weight of the evidence, a ruling sustaining it for that reason will not be disturbed if there was a substantial conflict in the testimony. In the case at bar the defendant testified to the matters set up in his counterclaim. It is true that the preponderance of the evidence seems to have been opposed to his testimony, but his testimony created a substantial conflict, and hence we can not holji the trial court abused its discretion in awarding a new trial. Baughman v. Fulton, 139 Mo. 557; Van Liew v. Barrett Beverage Co., 144 Mo. 509; Bank v. Wood, 124 Mo. 72; Hewitt v. Steele, 118 Mo. 463. Our attention is called to the peculiar wording of the judgment entered upon the award of the new trial which purported to dismiss the writ against defendant. This was erroneous so far as it undertook to do more than grant him a new trial on the merits of the action. Neither should it adjudge the costs of the new trial against the party whose verdict was set aside. R. S. 1889, sec. 2242. With this explanation of the extent of the order granting a new trial in this cause it will be affirmed at the cost of respondent, the error in whose judgment necessitated this appeal. All concur.