
    William C. Freeman, Respondent, v. C. C. Pratt, Appellant.
    St. Louis Court of Appeals,
    April 21, 1896.
    Practice, Appellate: weighing the evidence. It is the province of the jury, in an action at law, to pass upon the credibility of witnesses and to weigh the evidence, when there is a substantial conflict.
    
      
      Appeal from the Louisiana Court of Common Pleas.— Hon. Reuben P. Roy, Judge.
    Affirmed.
    
      W. 3. & N. W. Morrow for appellant.
    Fagg, Ball & Kicks for respondent.
   Bond, J.

This is an action for the reasonable value of labor and materials. The defendant conceded the reasonableness of the charges made, if it should be found that certain items were not contracted for at $60. The case was tried on the denial by plaintiff of the issue thus tendered. Judgment was rendered by the justice on this issue in favor of defendant.' Plaintiff appealed to the circuit court, where on a trial he recovered judgment for the amount charged in his account, the jury finding against defendant on the issue as to a contract for a fixed sum for certain specific items of the account. Defendant appeals to this court.

The only error assigned is that the verdict was “against the great weight of the evidence.” The defendant upon the trial admitted the doing of the work and that the prices charged were reasonable and just, but claimed that a portion of the work was done under a special contract at a stated compensation. Being asked by the court whether he assumed the burden of showing this, he replied that he did. Defendant introduced witnesses whose testimony tended to support the affirmative issue thus formed. On the other hand, the plaintiff and his witness Humphrey stated that no such contract as claimed by defendant was made. Hence, it is evident that the solution of the issue between the parties should have been committed to the jury, whose peculiar province it is to pass upon the credibility of witnesses and to weigh the evidence, where there is a substantial conflict.

There is no merit in this appeal. We are asked to exercise our statutory power of affirmance with ten per cent damages. This request is reasonable, and will be granted. The judgment of the trial court is affirmed with ten per cent damages.

All concur.  