45 Mo. 500 | Mo. | 1870
delivered the opinion of the court.
The plaintiff brought his action for work, etc., in painting defendant’s dwelling-house, out-houses, and fences, and for grain-ing a portion of the inside, and declared in the form of an indebitatus assumpsit, exhibiting with his petition a copy of his account, which covered all the work and materials, and which ivas all charged to the defendant. The answer denied everything, and upon the trial it was developed that the plaintiff had taken a contract from one Gerhart, the general contractor, to do the painting for $1,350, according to written specifications, and that Gerhart had paid him this amount, which is the sum credited to defendant in his account. The trial progressed without any objection to the form of the petition, and the plaintiff obtained a verdict for $985.50, upon which the court rendered judgment, which was reversed at general term.
Notwithstanding the form of the petition, the case was sub
This does not conflict with the rule that an appellate court should not disturb a verdict when there is evidence to sustain it, because it may differ with the jury as to the weight of that evi-
The judgment of the court at general term is affirmed and the cause remanded, with leave to amend the petition.