Bank of North America v. York

| Mo. | Apr 15, 1886

Ray, J.,

on Rehearing. — Tkis is an action lor deceit. Tke answer, a general denial.. Tke suit was commenced and tried in tke St. Louis circuit court, wkere tke plaintiff kad a verdict and judgment, from wkick tke defendant appealed to tke St. Louis court of appeals, wkere tke judgment of tke circuit court was reversed and tke cause remanded, from wkick tke plaintiff kas appealed to tkis court.

A synopsis of tke opinion of tke court of appeals is given in tke 8 Missouri Appeals, 604. Tke principal ground on wkick tkat court placed its reversal as we gatker from its opinion in tke record is tkat “ taking tke wkole testimony togetker it did not warrant any inference wkick would support tke verdict.” In tkis estimate of tke evidence after careful examination we feel constrained to differ from tkat court. Tke evidence wkick was voluminous, is conflicting and contradictory, tkat of each party tending to support his side of the case. The jury were the judges of its weight and value, and its finding in such cases will not be disturbed unless it appears to have been produced by misdirection of the court. The only instruction complained of by the court of appeals was to the following effect: “ That if defendant, prior to the loan, made the statements charged in the petition, and these statements were false, and defendant knew them to be false and made them with intent to deceive and mislead plaintiff in regard to the loan, and that plaintiff had reasonable ground to rely on such statements, and did rely upon them, and was deceived by them into making the loan, plaintiff is entitled to recover.” This instruction the court of appeals deemed misleading. In this also we differ from that court.

As applied to the evidence in the cause we see no error in this instruction, nor anything calculated to mislead the jury. We are of opinion, therefore, that the-court of appeals erred in reversing the judgment of the trial court and remanding the cause, and for that reason we reverse its judgment and affirm that of the circuit court, in which all the judges concur except Norton, J., and the writer, who adhere to the original opinion filed herein.

Per Curiam. — On motion of appellant the judgment is modified as follows: The judgment of the court of appeals is reversed and the cause remanded to that court with directions to enter a judgment afiirming that of the circuit court.