
    JONES STORE, INC., a corporation, Respondent, v. Octa R. WHITELEY, Appellant.
    No. 23171.
    Kansas City Court of Appeals. Missouri.
    Dec. 5, 1960.
    Edwin Earnshaw, Kirchner, Vanice & Earnshaw, Kansas City, for appellant.
    John R. Whitsitt, Kansas City, for respondent.
   SPERRY, Commissioner.

The Jones Store, Inc., plaintiff, sued in replevin to recover possession of an air conditioner sold to defendant. Verdict was for defendant, who was awarded damages in the amount of $500. Plaintiff’s motion for new trial was sustained on the grounds that the verdict was against the weight of the evidence. Defendant appeals.

Plaintiff offered in evidence an installment note, secured by a chattel mortgage on a window air conditioner purchased by defendant on June 30, 1954. There was testimony to the effect that the sale price was $466.73, to be paid in monthly installments of $26; that a number of installments were paid as they became due but that, at the time this suit was instituted, one or more monthly installments were in default.

Defendant admitted the purchase of the air conditioner on installment payments. She also admitted that she had made a number of payments on the note and claimed that she had made payments thereon in addition to those for which plaintiff gave her credit so that she was not delinquent on this account when the suit was brought. She admitted, however, that she had had many charge accounts with plaintiff over a period of twenty-five years; and it was unclear from her testimony as to what accounts, if any, other than the one in suit, she was making payments on during the period from and after June 30, 1954, until this suit was instituted. These were questions of fact for the jury to decide under all of the testimony.

The jury’s verdict for damages for de^ fendant was in the sum of $500, admittedly $114 in excess of the sum claimed by her. She tendered remittitur for the excess, but the court ordered a new trial for the reasons stated.

Section 510.330 RSMo 1949, V.A.M.S., provides as follows: “Only one new trial shall be allowed on the ground that the verdict is against the weight of the evidence. * * * ”

Where the evidence is such that the jury might reasonably find a verdict for either party, the judge may properly grant one new trial on the grounds that the verdict is against the weight of the evidence. Reardon v. White, Mo.App., 239 S.W. 162, 163. See Hoppe, Inc. v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347, 349, 23 A.L.R.2d 846.

The judgment should be affirmed. It is so ordered.

MAUGHMER, C., concurs.

PER CURIAM.

The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. All concur.  