Culver v. Kehl

• Decision Date: 01 April 1912
• Parties: F. D. CULVER, Appellant, v. F. W. KEHL, Respondent
• Court: Idaho Supreme Court

123 P. 301

21 Idaho 595

F. D. CULVER, Appellant, v. F. W. KEHL, Respondent

Supreme Court of Idaho

April 1, 1912

MOTION FOR NONSUIT-WHEN REVERSED ON APPEAL.

(Syllabus by the court.)

1. It is a settled rule in this state that on a motion made by the defendant for a nonsuit, after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence and all the facts which the evidence tends to prove and that the evidence must be interpreted most strongly against the defendant.

2. Where there is evidence introduced for the plaintiff which tends to prove the cause of action as alleged in the complaint, and a prima facie case is made by such proof, the evidence is sufficient to go to the jury, and it is error for the court to grant a motion for a nonsuit.

3. Where a cause of action is based upon an oral contract, it is proper for the respective parties to prove the conversations had between the parties subsequent to the time the contract is made for the purpose of showing whether there has been a breach of the provisions of such contract, and where demand is shown to have been made for the payment of the amount claimed under the contract, it is error to exclude testimony showing the conversation between the parties at the time such demand is made.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.

An action to recover a debt. Reversed.

Judgment reversed and a new trial granted. Costs awarded to appellant.

Black &amp Wernette, for Appellant.

Motion for nonsuit should be denied unless the evidence wholly fails to show a right of recovery. (Small v. Harrington, 10 Idaho 499, 79 P. 461; Idaho Comstock M. & M. Co. v Lundstrom, 9 Idaho 257, 74 P. 975; York v. Pacific & N. Ry. Co., 8 Idaho 574, 69 P. 1042.)

The nonsuit should be denied when there is any evidence tending to sustain plaintiff's case, without passing on the question of the sufficiency of the evidence. (Felton v. Millard, 81 Cal. 540, 21 P. 533, 22 P. 750; Zilmer v. Gerichten, 111 Cal. 73, 43 P. 408.)

Whitla & Nelson, for Respondent.

The minds of the parties never met in agreement on any contract with regard to the second cause of action, and damages resulting from the defendant's failure to take it would be too remote and indefinite and uncertain in amount to enter into the contemplation of the parties when the alleged contract was made. (Guetzkow Bros. & Co. v. Andrews, 92 Wis. 214, 53 Am. St. 309, 66 N.W. 119, 52 L. R. A. 209; Bradley v. Railway Co., 94 Wis. 44, 68 N.W. 410; Serfling v. Andrews, 106 Wis. 78, 91 N.W. 991.)

STEWART, C. J. Ailshie and Sullivan, JJ., concur.

OPINION

STEWART, C. J.

This is an action brought by the plaintiff to recover from the defendant the sum of $ 800. Two causes of action are stated. The first to recover upon a claim for $ 300 alleged to have been assigned to the plaintiff by one R. C. Sims; the second to recover the sum of $ 500 alleged to be due for breach of contract in the sale of certain scrip alleged to have been made by plaintiff to defendant. The answer puts in issue every material allegation of the complaint.

A jury was called to try the case and the plaintiff offered his proof in support of the allegations of the complaint, and at the close of plaintiff's evidence a motion for nonsuit was made upon the ground that there was not sufficient evidence introduced by the plaintiff in support of either cause of action to justify submitting the cause to the jury. The trial court sustained this motion and judgment was rendered against the plaintiff dismissing said action and for costs. From this judgment this appeal is taken.

The only question for consideration, therefore, is: Did the trial court err in granting the motion for a nonsuit?

It is now the well-settled rule in this state that on a motion by the defendant for a nonsuit after the plaintiff has introduced his evidence and rested his case, the defendant must be deemed to have admitted all the facts of which there is any evidence and all the facts which the evidence tends to prove, and that the evidence must be interpreted most strongly against the defendant. (Later v. Haywood 12 Idaho 78, 85 P. 494; Allen v. Phoenix Assur. Co., 12 Idaho 653, 10 Ann. Cas. 328, 88 P. 245, 8 L. R. A., N. S., 903; Pilmer v. Boise Traction Co., 14 Idaho 327, 125 Am. St. 161, 94...