Weaver Co. v. Schmidt

OPINION

By KUNKLE, J.

There is a sharp conflict in the testimony. This became a question for the jury rather than for a reviewing court. There is ample testimony in the record to support the verdict of the jury which was for the sum of $400 in favor of plaintiffs, if the testimony of Ernest Schmidt and other facts disclosed by the record are believed.

It is apparent that the jury did believe such testimony.

Counsel for defendants insist that the verdict for $400 is inconsistent; that if the plaintiffs were enttiled to recover at all, they were enttled to recover the full amount less such sum as the record shows they were able to secure as rental for the said premises after the same were vacated by defendants. Technically, the contention of counsel for defendants is correct, but the fact that the jury did not give the plaintiffs as much as they could have given them under the testimony is not a ground for reversal where such ground is urged by the party in whose favor such reduced verdict was rendered.

If the plaintiffs were pressing the question that under the testimony they were entitled to a larger amount then there would be merit in their claim.

The plaintiffs, however, are not prosecuting error but for reasons satisfactory to themselves are accepting the verdict of the jury. The fact that the jury did not return a verdict for as large an amount for the plaintiffs as they might have done does not constitute prejudicial error on the part of the defendants.

We have considered all of the errors urged by counsel for defendants below, but finding no error in the record which we think would warrant a reviewing court in disturbing the judgment of the lower court, the same will be affirmed.

HORNBECK, PJ, and BARNES, J, concur.