
    WHITESIDE, Respondent, v. LONGACRE, Defendant; TALL, Garnishee, Appellant.
    St. Louis Court of Appeals,
    January 19, 1904.
    APPELLATE PRACTICE: New Trial: Ambiguous Testimony. A new trial will not be ordered on the ground that the jury disregarded the testimony, regarding a certain issue, where such testimony was not free from ambiguity.
    Appeal from Clark Cironit Court . — Hon. E. R. McKee, Judge.
    Aeeirmed.
    
      Berkheimer & Dawson for appellant.
    
      T. L. Montgomery, and Whiteside & Yant for respondent.
   GOODE, J.

The facts of this cause will be found in the report of the decision given on a former appeal. 88 Mo. App. 168. By that decision the first judgment in favor of Whiteside, the garnishing creditor, was reversed and the cause remanded for retrial because of the refusal of an instruction setting forth the proposition that the plaintiff could not recover if the defendant Longacre, the garnishee Tall and Mrs. Lewellyn, had agreed before Tall was served as garnishee, that the latter should pay a note on Longacre held by Mrs. Lewellyn out of the money collected on the collateral notes deposited by Longacre with Tall. At the second trial several instructions presenting that defense in different phases were given, but the plaintiff again prevailed. It is contended on this appeal that the jury disregarded the testimony, which is said to have been consistent and positive to the effect that an arrangement was made by said parties prior to the garnishment for the payment by Tall of Mrs. Lewellyn’s note. There was -testimony on that issue for the jury’s consideration; but it was not so free from ambiguity as to render it proper for us to interfere with the verdict.

The judgment is affirmed.

Bland, P. J., and Reyburn, J., concur.  