Benham v. Purdy , 48 Wis. 99 ( 1880 )

OetoN, J.

Tbe objection of tbe appellant to tbe depositions for tbe want of notice was waived by bis joining in tbe commission and submitting cross interrogatories (Miller v. McDonald, 13 Wis., 673; Cameron v. Cameron et al., 15 Wis., 1); and tbe certificate of the commissioner appears to be sufficient.

Tbe facts of this case, and undisputed, appear to be, that the appellant and one Squires were copartners, and as such held a note for tbe sum of $298 against tbe firm of Carney Bros., of the state of Michigan, which was in tbe hands of one Adams, of said state, for collection; that upon tbe dissolution of tbe copartnership this note was assigned to Squires; and that tbe money collected by Adams on tbe note was sent by him to the appellant. Tbe respondent claims that be purchased tbe note for value and took an assignment of it before its collection from Squires, and has demanded tbe money as tbe proceeds thereof from tbe appellant. Tbe appellant denies these allegations, and claims that Squires was tbe owner of tbe note and tbe proceeds thereof, and that be bad applied the same in liquidation of a certain demand be held against Squires.

Tbe learned circuit judge held, in answer to an inquiry of counsel, “ that tbe defense set up in tbe answer turns upon tbe ownership of tbe note,” which was strictly correct, and this seems to have been tbe material question in the case.

We think there was testimony given upon this question tending strongly to show that Squires was tbe real owner of tbe note and moneys, and not tbe respondent, which ought to have been submitted to the jury. The appellant and tbe witness J. H. Hauser, Esq., both testified that tbe respondent admitted to them, respectively, that Squires was the owner of the note.

To say the least of it, there was a direct conflict of evidence, and a question of the credibility of witnesses and of the weight of testimony, of which the jury were the exclusive judges. Morrow v. Delaney, 41 Wis., 149.

To warrant the court to direct a verdict for either party, there should be no doubt about the evidence. Directing a verdict to be rendered for the plaintiff should rest upon the same principles as directing a nonsuit (Cutler v. Hurlbut et al., 29 Wis., 152); and the rule in such case is not to grant a nonsuit unless the plaintiff has clearly failed to make out a case, or when the testimony is conflicting and would sustain a verdict either way. Grasse et ux. v. Mil., L. S. & W. Railroad Co., 36 Wis., 582. A nonsuit should be ordered only when there is an .entire want of evidence which, on the most favorable construction, tends to establish the plaintiff’s case. Imhoff v. Ch. & Mil. Railroad Co., 22 Wis., 631. Tested by these rules, the circuit court clearly erred in directing a verdict for the plaintiff in this case.

By the Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.