On Motion to Modify or for Rehearing or Transfer to Court En Banc
PER CURIAM.Appellants, plaintiffs below, have filed a motion to modify, or for rehearing or transfer to Court en Banc, accompanied by an offer of a remittitur of $2,000 (based on $200 a month depreciation for the ten months the contract was to continue) for the entry of a judgment for $17,000 as of the date of the verdict. Respondent has filed no suggestions in opposition.
Appellants’ offer of remittitur ignores appellants’ receipt of $539.87 for their performance of the contract in August, i. e., until August 7, 1956.
Appellants, as ground for their position, say the court overlooked an answer of appellant Coonis on cross-examination to the effect he thought, the best he remembered, appellants “allowed a little, but not much, about two hundred dollars a month” for depreciation on their trucks. Appellant Coonis on direct examination named the spare parts (including, among other equipment, 24 tires) appellants had on hand to perform the contract and testified appellants placed no valuation on such equipment; had fully depreciated and written off appellants’ trucks for garbage collection; and, based upon appellants’ records and his experience, he arrived at his estimate of profits for the remaining ten months of the contract. And, on cross-examination he testified one of the reasons appellants would have made $19,000 profits was because appellants’ equipment was all written off on their tax books, had been depreciated out since June 1, 1956; and he had counted nothing off for the use of the tires on hand because appellants “didn’t have to buy them”; “had already bought them”; had “paid for them out of the garbage contract.”
Appellant Fortner testified that no depreciation on the trucks had been allowed in estimating the $19,000 profits.
Appellant Coonis’ testimony is contradictory and conflicting, one version tending to prove the issue, the other tending to disprove it; and the jury should not be permitted to speculate or guess which version should be accepted. Steele v. Kansas City Southern R. Co., 265 Mo. 97, 115, 175 S.W. 177, 181 [2]; Adelsberger v. Sheehy, 332 Mo. 954, 59 S.W.2d 644, 647 [6, 8]; Stephens v. Thompson, Mo., 293 S.W.2d 392, 394 [1]; Thaller v. Skinner & Kennedy Co., Mo.App., 307 S.W.2d 734, 738.
The record is to the effect appellants’ estimate of profits did not take depreciation of their equipment into consideration because appellants had fully depreciated the equipment out of the profits of the contract by June 1, 1956. Appellants must have so considered the record. We find no mention in their brief of the testimony now stressed. They filed no reply brief. Their points on this issue were: “The jury, under the law, was not required to consider depreciation separately, if at all.” “The jury, under the evidence, could have considered depreciation and yet have returned a verdict for $19,000.00.” We find the following in their argument: “And, last, it should be kept in mind that plaintiffs’ equipment consisted of five trucks, ’47 to ’51 models, which already had been completely depreciated. Under this evidence, the jury simply cottld have found that there was no depreciation cost allocable to the contract for the ten-month period in question. If ■so, there was no occasion for a depreciation *530deduction.” As stated in the Steele case, supra [265 Mo. 97, 175 S.W. 181]: “Neither an attorney nor his client, the litigant, ought to be allowed to play fast and loose with courts.”
A point, argument, or theory advanced for the first time in a motion for rehearing or to transfer is generally disregarded. State ex rel. Cole v. Matthews, Mo., 274 S.W.2d 286, 292 [9]; Ford v. Wabash R. Co., 318 Mo. 723, 300 S.W. 769, 778 [15, 16]; Phippin v. Missouri Pac. R. Co., 196 Mo. 321, 93 S.W. 410, 418; Campbell v. St. Louis Public Service Co., Mo.App., 35 S.W.2d 49, 53 [5].
Appellants’ motion is overruled.