Holschen v. Fehlig

Missouri Court of Appeals

Holschen v. Fehlig

55 Mo. App. 375, 1893 Mo. App. LEXIS 315

DecidedDecember 5, 1893

StatusPublished

This text of 55 Mo. App. 375 (Holschen v. Fehlig) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Holschen v. Fehlig, 55 Mo. App. 375, 1893 Mo. App. LEXIS 315 (Mo. Ct. App. 1893).

Pincite

Opinion

Rombauer, P. J.

The plaintiff, who is a real estate agent, sued the defendant for commissions which he claimed to have earned in the sale of defendant’s house. The court tried the cause without a jury and rendered a judgment for the defendant. The plaintiff assigns for sole error in this court that “there was no substantial evidence to support the judgment.”

The burden of proof in this case was with the plaintiff; hence an assignment of error, that “there was no substantial evidence to support a judgment for the defendant,” involves a contradiction in terms. We have, however, treated the assignment as if it intended to charge that the plaintiff was entitled to recover on the undisputed facts. With that view, we have read over the evidence, and find that the facts are contro[376]*376verted throughout. The plaintiff gave evidence tending to show that he was the procuring cause of the sale. The defendant gave evidence tending to show that not the plaintiff, but a third person, was the cause; and, moreover, that the defendant had paid commissions to such third person upon plaintiff’s disclaimer of them. It must be evident that the finding of the trial court in that state of the record cannot be disturbed, and that no question of law is presented for our consideration on this appeal.

All the judges concurring,

the judgment is affirmed.

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Rombauer, P. J.

The plaintiff, who is a real estate agent, sued the defendant for commissions which he claimed to have earned in the sale of defendant’s house. The court tried the cause without a jury and rendered a judgment for the defendant. The plaintiff assigns for sole error in this court that “there was no substantial evidence to support the judgment.”

The burden of proof in this case was with the plaintiff; hence an assignment of error, that “there was no substantial evidence to support a judgment for the defendant,” involves a contradiction in terms. We have, however, treated the assignment as if it intended to charge that the plaintiff was entitled to recover on the undisputed facts. With that view, we have read over the evidence, and find that the facts are contro[376]*376verted throughout. The plaintiff gave evidence tending to show that he was the procuring cause of the sale. The defendant gave evidence tending to show that not the plaintiff, but a third person, was the cause; and, moreover, that the defendant had paid commissions to such third person upon plaintiff’s disclaimer of them. It must be evident that the finding of the trial court in that state of the record cannot be disturbed, and that no question of law is presented for our consideration on this appeal.

All the judges concurring,

the judgment is affirmed.

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Bluebook (online)

55 Mo. App. 375, 1893 Mo. App. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holschen-v-fehlig-moctapp-1893.