dissenting.
New things are more essential to the just administration of law than an adherence on the part of its judges to the principle that fixed rules and not individual opinions of propriety should determine-the judgment in any given case. It makes no difference in the application of this principle whether the power to be exercised is discretionary, because a judicial discretion must also be dependent on certain fixed rules, and is not synonymous with the arbitrary will of the judge, dependent on the changing mood of the man.
The law provides that this court “in appeals or writs of error shall examine the record and award a new trial, reverse or affirm the decision of the circuit court, or give such judgment as such court ought to have given as to them shall seem agreeable to law. ’ ’ Revised Statutes, section 3776.
The duty of this court in the premises is imperative.. The word used is “ shall.”
As was pertinently said in the opinion of this court by Thompson, J., in Ellison v. Ralston (19 Mo. App. *92537): “111 the construction of statutes there is a well known rule, that the word ‘may’ is often made to read ‘shall,’ where substantial rights are involved; but we know of no rule by which the word ‘ shall,’ in a statute creating a distinct right in favor of a party, can be changed by a judicial interpretation to read ‘ may,’ so as to fritter away the right and make it a mere matter of judicial caprice.”
Whatever construction may have been put upon section 3776, supra, by this court formerly, it was certainly not construed within the year next preceding, otherwise than as imposing upon this court an imperative duty, and I know of no instance where its mandate was disregarded.
In Andrews v. St. Louis Tunnel Railroad Co. (16 Mo. App. 299), a case almost identical with this, • this court originally made a judgment reversing the judgment of lien rendered by the lower court, and entered here a judgment for the debt. Upon strenuous efforts made by able counsel for the appellants, upon a motion for modification of that judgment, the entire judgment was reversed and the cause remanded, but upon a full examination of the whole question, the court receded from the last order and adhered to its original judgment.
From that time on till the present its course has been uniform and in harmony with the rule, which I have always consided as the true rule, that where the evidence preserved in the transcript of the record admits only of one conclusion, it is the duty of this court to give effect to such conclusion by judgment, as such course alone can be agreeable to law.
In the following cases the rule has found application and has been announced in one form or another by this court within the preceding year; Priest v. Lawrence, 16 Mo. App. 409; Dwyer v. Dwyer, 16 Mo. App. 422; Rhodes v. Farish, 16 Mo. App. 430; Leary v. People's Railroad Co., 16 Mo. App. 561; Pfau v. Breitenburger, 17 Mo. App. 20; The State v. Sellner, 17 Mo. App. 39; The State v. Bruner, 17 Mo. App. 274; Birtwhistle v. Wood *93ward, 17 Mo. App. 277; Tobin v. McCann, 17 Mo. App. 481; Thompson v. Bronson, 17 Mo. App. 456; The State v. Fuchs, 17 Mo. App. 458; The State v. Fayette, 17 Mo. App. 587; Rubleman v. Greve, 18 Mo. App. 6; Hollander v. Kætter, ante, p. 79; McQuoid v. Lamb, 19 Mo. App. 152; Meyer v. Mehrhoff, 19 Mo. App. 68; Russell v. O’ Laughlin, ante, p. 59; Duryee v. Turner, ante, p. 34; McLaughlin v. Concordia College, ante, p. 42.
In several of these cases I was inclined to the opinion that substantial justice might be subserved by a re-trial of the cause, but yielded to the persuasive and seemingly conclusive argument of my associates, that the parties have had their day in court; that upon all the evidence they were entitled to no other judgment than the one about to be rendered ; and that it was not the policy of the law that litigation should be protracted, or that causes should needlessly be sent for re-trial with an inducement for amended swearing.
It has never been held that parties are entitled to a new trial simply because on a re-trial of the cause they might succeed in making a better case. Even where new trials are granted on the ground of newly discovered evidence the party claiming the re-trial must affimatively show that it was not in his power to produce it at the former trial. ' Why should such new trial be granted in this instance ?
There is no controversy about the facts determining the rights of the parties. No evidence offered by the plaintiffs has been wrongfully excluded by the court below. The plaintiffs have had a full and fair trial. We all concur that upon the facts shown the defendant owner is entitled to a judgment, and that the plaintiffs are entitled to a judgment against the defendant contractor. We have rendered such judgment. To change it now and remand the cause for new trial would not only do away with a salutary rule which we have taken pains to follow in a number of cases, but to do away with it, as it seems to me, for no substantial or apparent reason, but as “a mere matter of judicial caprice.”
*94Led by these considerations I can not concur in the opinion of the majority of the court, as far as the same contemplates a modification of the judgment heretofore Tendered by this court.