This is in direct conflict with the controlling opinions of the Supreme Court of Missouri, in that said controlling opinions of the Supreme Court hold that the appellate court cannot assume, as a matter of law, that the testimony of witnesses is true, satisfactory or convincing to the jury, even though no one contradicts what has been uttered. Gannon v. Laclede Gaslight Co., 145 Mo. 516; Ford v. Ry. Co., 318 Mo. 723, 300 S.W. 769; Gluck v. Abe, 40 S.W.2d 558; State ex rel. Mo. Gas Elec. Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43. (2) The opinion of the Springfield Court of Appeals should be quashed, because in that opinion that court usurped the province of the jury, and says in effect that that court believed the testimony of the three witnesses, whom the jury did not believe, as shown by their verdict, and in disregard of the verdict reversed and remanded the case with directions to the trial court to enter a judgment in conformity with its opinion and belief, and which is in conflict with the controlling opinions of the Supreme Court of Missouri, in numerous cases, including the controlling opinion in the case of State ex rel. Missouri Gas Electric Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43, which holds: That an appellate court cannot usurp the functions of the triers of the fact and make a finding to suit itself. The only thing which an appellate court may do under such circumstances is to reverse the judgment and remand the case to give the triers of the fact an opportunity to weigh the evidence.

"Even if relator has not specifically assigned this conflict of opinion, it is our clear duty to notice it when its existence comes to our attention. State ex rel. Missouri Gas Electric Co. v. Trimble, 307 Mo. 536, loc. cit. 552, 271 S.W. 43; State ex rel. Shawhan v. Ellison, 273 Mo. 218, loc. cit. 228, 200 S.W. 1042; State ex rel. Vulgamott v. Trimble, 300 Mo. 92, loc. cit. 101, 253 S.W. 1014."

Furthermore, the trier of facts has the right to disbelieve evidence, even when it is not contradicted. See State ex rel. Missouri Gas Electric Service Company v. Trimble, 307 Mo. 536, 271 S.W. 43, 47 (1925). IV. Conclusion

The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached. Gannon v. Laclede Gaslight Co., 145 Mo. 502, 46 S.W. 968, 47 S.W. 907, 43 L.R.A. 505; Ford v. Wabash Ry. Co. et al., 318 Mo. 723, 300 S.W. 769, 777, 778; State ex rel. Missouri Gas Electric Service Co. v. Trimble et al., 307 Mo. 536, 271 S.W. 43, 47, and cases cited; Schroeder v. Chicago A. Ry. Co., 108 Mo. 322, 18 S.W. 1094, 18 L.R.A. 827."

d even though there is no responsible principal behind them. Health v. Goslin, 80 Mo. 310; Riffe v. Proctor, 99 Mo. App. 601; Lorimer v. McGreevy, 84 S.W.2d 667, 229 Mo. App. 970; Taylor v. Davis, 28 L.Ed. 163, 110 U.S. 330; Davis Rankin v. Hendrix, 59 Mo. App. 444; Michael v. Jones, 84 Mo. 578; Murphy v. Holliway, 16 S.W.2d 107, 223 Mo. App. 714; International Store Co. v. Barnes, 3 S.W.2d 1039; Farmers' Merchants' Bank v. Ratliff's Estate, 297 S.W. 84, 222 Mo. App. 215; 126 A.L.R. 119 note; 2 Am. Jur. 248. (3) The evidence of plaintiff's having acquired any rights under the loan contract and as to his ownership of the notes being entirely oral, it was error for the court to give the jury the peremptory instruction to find for plaintiff. Gannon v. Laclede Gas Light Co., 145 Mo. 502; Cluck v. Abe, 40 S.W.2d 558, 328 Mo. 81; State ex rel. Brewing Co. v. Ellison, 226 S.W. 577, 286 Mo. 225; Foster v. Metropolitan Life Ins. Co., 233 S.W. 399; State ex rel. v. Trimble, 271 S.W. l.c. 47, 307 Mo. 536. The question of plaintiff's ownership of the notes is raised by general denial. Worrell v. Roberts, 58 Mo. App. 197.

In the Matter of Richard H. Kramer, 3 Mo. P.S.C.R. 434; In re Kinloch Long Distance Tel. Co., 12 Mo. P.S.C.R. 400; Western Union Tele. Co. v. Call Pub. Co., 181 U.S. 92; Alabama Power Co. v. Patterson, 138 So. 421; State ex rel. Laundry, Inc., v. Public Service Comm., 327 Mo. 93, 34 S.W.2d 37. (7) The order does not establish any new rates for Laclede's and Union's customers; it merely continues lawful rates already in effect. State ex rel. Gas Elec. Co. v. Trimble, 307 Mo. 536; State ex rel. Public Serv. Comm. v. Shain, 342 Mo. 867. (8) It is not required that necessity for the sale be shown or that the customers will benefit therefrom. In re Union Electric Light Power Co., 13 Mo. P.S.C. 507; State ex rel. St. Louis v. Public Serv. Comm., 335 Mo. 448. (9) Relator's economic views and conception of the wisdom or expediency of the order cannot be substituted for those of the Commission.

State ex rel. Hartford Fire Ins. Co. v. Trimble, 298 Mo. 418, 250 S.W. 393; Bellows v. Travelers' Ins. Co., 203 S.W. 978. (3) Respondents further held that the instruction "is not to be construed as having assumed the fact of an accidental injury," and further that "even if the instruction were to be read as having assumed the occurrence of the accidental injury, it would still not be fatally defective on account of such assumption." In so holding, respondents contravened controlling opinions of this court that it is error for the court to give an instruction which assumes a controverted fact. Woehler v. St. Louis, 342 Mo. 237, 114 S.W.2d 985; State ex rel. Missouri Gas Elec. Service Co. v. Trimble, 307 Mo. 536, 271 S.W. 43; Barr v. Nafziger, 328 Mo. 423, 41 S.W.2d 559. (4) Respondents, in their opinion, held that the question of vexatious refusal to pay was a question for the jury, properly submitted by Instruction 4, because the defendant "had but little competent evidence to offer, and that of but slight persuasive effect." Relator offered in evidence the written statements of nine witnesses who, in said statements, wholly substantiated the defense, but who, when called by relator, refused to testify in accordance with such statements.

State v. Schenk, 238 Mo. 429, 142 S.W. 263; Timmonds v. Kennish, 244 Mo. 318, 149 S.W. 652; State ex inf. v. Meeker, 317 Mo. 719, 296 S.W. 411; Camp v. Wabash Ry. Co., 94 Mo. App. 272, 68 S.W. 96. (2) The Kansas City Court of Appeals in construing the "contiguous lot statute" was acting within its jurisdiction, and was a court of last resort; accordingly the Legislature in re-enacting the statute in 1909 must be deemed to have adopted the construction given it by that court in Bolen Coal Co. v. Ryan and in Missouri Central Lumber Co. v. Sedalia Brewing Company. State ex rel. v. Shain, 338 Mo. 1208, 93 S.W.2d 992; State ex rel. v. Daues, 313 Mo. 681, 282 S.W. 389; State ex rel. v. Trimble, 307 Mo. 536, 271 S.W. 43; Harrison v. Jackson County, 187 S.W. 1183; Majestic Mfg. Co. v. Reynolds, 186 S.W. 1072; State ex rel. v. Nixon, 133 S.W. 341. (3) No personal judgment should be entered against a bankrupt contractor, but the Court should merely order a finding of indebtedness entered and certified to the federal court.

Aslin v. Stoddard County, 341 Mo. 138, 106 S.W.2d 472. (4) The weight and credit of plaintiff's witnesses was for the chancellor's determination, even though uncontradicted by oral testimony. State ex rel. Missouri Gas Electric Serv. Co. v. Trimble, 307 Mo. 536, 271 S.W. 43. [1031] VAN OSDOL, C.

0; Richardson v. Ames, 2 S.W.2d 519; State ex rel. Strohfield v. Cox, 30 S.W.2d 462, 325 Mo. 908; Williams v. Morehead, 77 So. 658, 116 Miss. 653; In re Will of Brown, 120 N.W. 667, 143 Iowa 648. (2) Appellant having offered only oral evidence to prove the execution of the 1935 will, and the verdict being in favor of defendants, the sufficiency of the evidence to support the verdict in defendants' favor is not an open question on appeal. Cluck v. Abe, 40 S.W.2d 558, 328 Mo. 81; Dempsey v. Horton, 84 S.W.2d 621, 337 Mo. 379; Connole v. Ry. Co., 102 S.W.2d 586, 340 Mo. 690. (3) The jury is not bound to believe the testimony of appellant's witnesses, though not contradicted. Gannon v. Laclede Gas Light Co., 46 S.W. 968, 145 Mo. 502; Union Trust Co. v. Hill, 223 S.W. 434, 283 Mo. 282; State ex rel. Brewing Co. v. Ellison, 226 S.W. 577, 286 Mo. 233; Unrein v. Oklahoma Hide Co., 244 S.W. 924, 295 Mo. 368; Diehl v. Green Fire Brick Co., 253 S.W. 984, 299 Mo. 660; State ex rel. Mo. Gas, etc., Co. v. Ellison, 271 S.W. 43, 307 Mo. 551; Cluck v. Abe, 40 S.W.2d 559, 328 Mo. 81; Dempsey v. Horton, 84 S.W.2d 623, 337 Mo. 379. (4) Appellant, having failed to ask an instruction for a directed verdict at the trial, cannot, on appeal, raise the point that there was a total failure of proof. 2 Houts, Mo. Pleading Practice, p. 524, sec. 537; Harbison v. Ry. Co., 37 S.W.2d 614, 327 Mo. 440; Lehnerts v. Otis Elevator Co., 256 S.W. 821; Schindler v. Producers Grain Co., 237 S.W. 125; Mayger v. Carlander, 261 S.W. 692; Fierce v. Hardware Co., 14 S.W.2d 513; Desano v. Hall, 14 S.W.2d 484; Doody v. California Woolen Mills Co., 216 S.W. 534; Kennefick-Hammon Co. v. Ins. Co., 205 Mo. 294, 103 S.W. 961; Hartford Ins. Co. v. Unsell, 144 U.S. 451; Hansen v. Boyd, 161 U.S. 451; Dusky v. Kansas City, 58 S.W.2d 768; Neal v. Curtis Co., 41 S.W.2d 543, 328 Mo. 389. (5) The verdict of the jury definitely determines the issue in controversy. Sec. 537, R.S. 1929; Muller v. St. Louis Hospital Assn., 73 Mo. 242; Provo Mfg. Co. v. Swearance, 51