Layson v. Wilson

37 Mo. App. 636 | Mo. Ct. App. | 1889

Gill, J.

From an examination of the record of this case we discover no substantia] reason for disturbing the judgment of the circuit court. Defendant’s ■ counsel make some complaint as to the two instructions given by the court of its own motion, but it seems the - court thereby fairly presented the issues made by the ■pleadings, and suggested by the evidence, for both parties to the cause. By instruction number 2 the jury were correctly advised that the measure of damages, if • they found for plaintiffs, was the difference between the value of the jack if .he had been as warranted and his value as he was.

Although the ■ court did not use the words ‘‘ the •value at the time and place of sale,” yet the words of the instruction taken in connection with the evidence, clearly indicated that such value should be fixed at the time as well as the place of sale. Defendant’s counsel further complain of this second instruction, requiring the jury to determine the quantum of damages by reference to the value of the jack at the time of sale if he had been as represented, because counsel say that there was no evidence whatever as to what was the value of the jack if he had been as warranted. It is true, as counsel state, that the only evidence tending to fix such value is the price agreed upon and paid at the time of purchase. This, however, is quite persuasive evidence of such value. The price paid is regarded as strong evidence of the value of the animal, at the time and place of purchase, if sound and of the quality represented by the vendor. Cary v. Gruman, 4 Hill. 625; Fisk v. Hicks, 31 N. H. 535; Page v. Parker, 40 N. H. 48.

II. It is further claimed by the defendant that the trial court erred in refusing to give the defendant’s instruction to the effect that if plaintiff Layson and defendant Wilson were of equal credibility the verdict should be for the defendant. The theory, upon which this instruction was asked, was, doubtless, that as the burden of proving that defendant warranted the animal' sold was on plaintiffs, and that as Layson gave one and Wilson another version of the transaction, the jury should have found the issue for defendant, if both witnesses were equally credible. But the jury in determining the weight of evidence, and settling conflicts of testimony, are not confined alone to the mere credibility of the witnesses adduced at the trial. ' It is equally the province of these triers of the facts to consider the evidence, as given by the witnesses, in the light of all the circumstances — to consider the same in the light of reason —which story better consists with experience and the ordinary transactions of men — to observe the conduct oí the witnesses on the stand, etc., and by these determine where the truth resides. Juries are not bound in settling such conflicts in the evidence “to count noses.”

Hence the court, in this case, very properly refused to so instruct the jury, as requested by defendant.

. Detecting no substantial error in this record, we affirm the judgment of the circuit court.

The other judges concur.