Fobes Supply Co. v. Kendrick

• Decision Date: 24 November 1915
• Docket Number: 12726.
• Citation: 88 Wash. 284,152 P. 1028
• Parties: FOBES SUPPLY CO. v. KENDRICK.
• Court: Washington Supreme Court

152 P. 1028

88 Wash. 284

FOBES SUPPLY CO. v. KENDRICK.

No. 12726.

Supreme Court of Washington

November 24, 1915

Department 1. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Action by the Fobes Supply Company against Robert G. Kendrick. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Miller & Lysons, of Seattle, for appellant.

Peters & Powell, of Seattle, for respondent.

MORRIS, C.J.

Action to recover the value of merchandise alleged to have been converted by appellant to his own use, and an appeal from a judgment in favor of respondent. There was no issue as to the taking of the goods, the only question being whether the taking was a conversion or, as claimed by appellant, the merchandise had been purchased and paid for in the regular course of business. The questions were submitted to a jury under appropriate instructions. Prior to the submission to the jury, respondent had moved the trial court to withdraw the case from the jury and enter judgment for respondent. This was denied. Respondent then moved for an instruction directing a verdict in its favor. This was also denied. After deliberating upon the case some time, the jury reported they were unable to agree upon a verdict, and the court discharged them. Respondent then filed this motion:

'Plaintiff moves for judgment notwithstanding the failure of the jury to agree upon a verdict. This motion is based upon the ground that under all the evidence the defendant is liable to plaintiff for the amount demanded in the complaint as a matter of law.'

The motion was granted, and a judgment entered for respondent.

Appellant first attacks the power of the trial court to grant the motion upon the ground that it was denominated 'motion for judgment non obstante,' maintaining that the court was powerless to grant a motion of this character under a number of our late cases. It is immaterial what respondent chose to call its motion. The power of the court to grant or deny it is to be determined by what action of the court it invoked, and this was to hold, as a matter of law, that there was no evidence upon which a verdict in appellant's favor might rest. This motion invoked the same ruling as the challenge to the sufficiency of the evidence, and the motion for a directed verdict. If the trial court would have been justified in granting either of those motions the same justification would sustain the right to...