131 Mo. 607 | Mo. | 1895
This case was before this court on a former occasion (113 Mo. 359) to which reference may be had for a statement of its salient facts. 'The judgment was then reversed and the cause remanded for a new trial. Before the second trial plaintiff filed an amended reply to the amended answer, admitting that defendant was entitled to a credit of $299.50 claimed in the answer, but denied the allegations .with respect of the counterclaims.
The case was tried before a jury, which returned a verdict in favor of plaintiff in the sum of $3,565.18,
The only errors complained of on this appeal are as follows: First, that the court below erred in admitting any evidence concerning the weather or the effect of rain on woodwork; second, that the verdict of the jury was erroneous in finding on the counterclaim for damages to the woodwork only the sum of $100, when there was no evidence before them as to the amounts showing the damages from such causes to be less than $320.
During the trial plaintiff, over the objection of defendant, was permitted to prove that there was much bad weather between the seventeenth of November and the fifteenth of December, during which time the building was not roofed in, and in this committed error. Under the first counterclaim in which damages are claimed because of plaintiff’s failure to complete the building on or before the fifteenth day of December, according to the terms of his contract, such evidence was clearly inadmissible. The only way he could have protected himself against such contingencies, was to have done so by contract. Davis’ Adm’r v. Smith, 15 Mo. 468; Shouse v. Neiswaanger, 18 Mo. App. 236. But this he did not do. The ruling of the court on this question in so far as this evidence was inapplicable to the first counterclaim was corrected by an instruction given at the instance of the defendant by which the jury were told, that the plaintiff was not entitled to any credit for delays caused by bad weather. This was in effect telling them to disregard such evidence with respect of that counterclaim, and confining it to the second counterclaim under which it was clearly admissible, thus curing any error in the admission of the evidence under the first counterclaim.
This contention is predicated upon the ground that while there was evidence estimating defendant’s damages under that counterclaim at a much larger sum than $320, there was no evidence placing the damages at a less sum. There was no certain or fixed method by which the damages could be definitely ascertained, and the evidence of the witnesses with respect thereto was merely approximate.
The jury were the sole judges of the weight of the evidence and the credibility of the witnesses, and with the exercise of their judgment the court ought not to interfere, unless the result of their finding be in excess of that which is sanctioned by law, reason, and justice. The witnesses went into details as to the facts and circumstances upon which they based their opinions with respect to the amount of damages, all of which were before the jury and court, and we are not prepared to say that the verdict was so far unsupported by the evidence as to justify this court on a second appeal to interfere with the judgment on that ground, especially after the trial court has refused to set the verdict aside. The judgment is affirmed.
