Hozz v. Felder

• Decision Date: 19 January 1959
• Citation: 334 P.2d 159,167 Cal.App.2d 197
• Parties: Louis HOZZ and Ettle Hozz, Plaintiffs and Respondents, v. Leo C. FELDER and Doris E. Felder, Defendants and Appellants. Civ. 9351.
• Court: California Court of Appeals Court of Appeals

Page 159

334 P.2d 159

167 Cal.App.2d 197

Louis HOZZ and Ettle Hozz, Plaintiffs and Respondents, v. Leo C. FELDER and Doris E. Felder, Defendants and Appellants.

Civ. 9351.

District Court of Appeal, Third District, California.

Jan. 19, 1959.

Lawrence A. Cowen, San Rafael, for appellants.

Geary, Spridgen & Moskowitz, Santa Rosa, for respondents.

PEEK, Justice.

This is an action to recover the value of merchandise allegedly sold by plaintiffs to defendants on an open book account. At the close of plaintiffs' case, defendants' motion for a nonsuit was denied. At the conclusion of the trial, plaintiffs moved for a directed verdict which likewise was denied. Following the entry of judgment on the verdict of the jury in the sum of $4,402.76, plaintiffs moved for a judgment notwithstanding the verdict and for a new trial. The court granted both motions, but by its order granting a new trial provided that it should be effective only if on appeal the judgment notwithstanding the verdict was reversed and the order granting a new trial was not appealed from, or, if appealed from, was affirmed. Thereafter judgment pursuant to said order granting judgment n. o. v. was entered in the sum of $7,977.07 and the defendants now appeal.

By their original complaint plaintiffs alleged that while doing business as the Petaluma Milling Company they sold and delivered feed and dairy supplies to defendants in the sum of $7,870.82, which sum included interest at 6% per annum to February 7, 1955. By their amended complaint said amount was increased to $9,043.63 including interest; and that said sum was now due and unpaid, with interest thereon at the rate of 6% per annum. Defendants answered, denying generally the allegations of the complaint. At the trial there appeared to be no question but that defendants were indebted to plaintiffs. The issue related not so much to the amount of the principal of the debt as it did to the interest, if any, to be charged.

In this regard, from the evidence adduced, the jury could have found that interest had been charged on the account for the period covered in the complaint with the exception of a period of time from May 1, 1947 to December 31, 1948; that there was an oral agreement that no interest was to be charged; that interest was waived for the period of May, 1947 through December, 1948 only; or that any waiver of interest was conditioned upon payment of the balance due and keeping the account current. In regard to this last possibility, it could have been found that the condition failed and that the plaintiffs were thereafter entitled to charge interest for the full period covered by the complaint.

Defendants' first contention is that the trial court erred in granting plaintiffs' motion for judgment notwithstanding the verdict in that the evidence was in conflict and that the trial court in granting the motion weighed the evidence and substituted its own conclusions for those of the jury.

It would appear unnecessary to quote the rather lengthy provisions of Section 629 of the Code of Civil Procedure. It is sufficient to note that the power of the court to order a judgment n. o. v. is predicated primarily upon an unlawful denial of a motion for a directed verdict or, stated otherwise, if, under the facts of the case, a motion for a directed verdict could not have been granted, then it follows that the court could not order a judgment n. o. v. Tracey v. L. A. Paving Co., 4 Cal.App.2d 700, 41 P.2d 942. Whether or not a motion for judgment n. o. v. should be granted must be determined in light of the rules relative to a directed verdict, i.e., conceding as true the evidence most favorable to the adverse party and giving to it all reasonable inferences which may be drawn therefrom, it must appear that there is no...