Taussig v. Wind

98 Mo. App. 129 | Mo. Ct. App. | 1903

REYBURN,

1. The plaintiff -at the threshold of the case asks that the verdict of the jury be set aside on the ground that there was no substantial evidence to sustain it, but the record discloses abundant foundation in the testimony for the verdict rendered, and being supported by substantial evidence, it is therefore conclusive as to questions of fact, and the action of the trial court in overruling the motion for new trial of plaintiff upon this ground was fully warranted. An appellate court will not reverse nor disturb a judgment unless the verdict upon which it is based is entirely unsupported by substantial evidence.

2. Plaintiff criticises the * instructions given by the court, directing the jury to find for defendant if they found that the defects in plastering the houses were not due to a lack of ordinary skill and care, either in mixing or applying the plastering, but were due to the rapid drying out of such plastering by reason of the excessive heat then prevailing, which would have permitted the jury to find for the defendant if they concluded from the evidence that the plastering put on in hot weather dried out too rapidly and consequently crumbled, but the plaintiff had predicated his right of recovery upon the two-fold allegation that the material furnished for plastering the buildings was not first-class, but was inferior in quality, and that the work of plastering was not performed in workmanlike manner, and having restricted himself to such pauses of action was not entitled to recover if the falling of the plaster was due to any other or different cause or causes from those assigned in the petition, though under proper allegations and testimony defendant might have been responsible under the contract for damages produced by such additional causes. McCormick v. Transit Co., 154 Mo. 191; Whipple v. Loan Association, 55 Mo. App. 554, and many authorities therein referred to.

3. For the same reasons plaintiff’s instructions presenting the theory of a breach of any implied warranty arising out of the contract in suit, if indeed such implied warranty can be injected into such an express contract, were properly refused, as neither the petition nor the evidence introduced at the hearing presented any such proposition, and as before stated, the issues presented by the instructions in the trial must be confined within the limits established by the pleadings.

1. Plaintiff further assigns as error that the trial court permitted defendant, over the objections of plaintiff, to introduce testimony that defendant was not notified of the fall of the plaster, nor requested to perform the work of repairing. The instructions of the court to the jury diverted the mind of the jury from this evidence, if incompetent, and directed its attention to the relevant evidence bearing upón the issues presented, and in obedience to the instructions of the court, the jury must be presumed to have confined its deliberations to the issues submitted by the instructions, and this evidence, if inadmissible, could not have influenced its verdict. To assume that the jury was influenced by this evidence, we must conclude that it was not guided by the instructions, but traveled outside to consider evidence that had no bearing upon the issues of fact submitted. Under the instructions the verdict being for the defendant, the jury must have found that he had complied with the contract, or that the plastering fell not from defective material or imperfect workmanship, but from the effect of the elements, and therefore this evidence, even if inadmissible, which is at least doubtful, did not affect the verdict. No material injury was worked by the admission of such evidence, and the judgment of the lower court is accordingly affirmed.

Bland, P. J., and Goode, J., concur.