Knorr v. Velva Supply & Mach. Co.

• Decision Date: 18 February 1931
• Docket Number: No. 5845.,5845.
• Citation: 235 N.W. 149,60 N.D. 449
• Court: North Dakota Supreme Court
• Parties: KNORR v. VELVA SUPPLY & MACHINE CO.

60 N.D. 449

235 N.W. 149

KNORR

v.VELVA SUPPLY & MACHINE CO.

No. 5845.

Supreme Court of North Dakota.

Feb. 18, 1931.

Syllabus by the Court.

Under section 7628 of the Compiled Laws of 1913, where the jury is discharged without having arrived at a verdict, the action should be tried again immediately or at such future time as the court may direct.

Syllabus by the Court.

Where a jury has failed to arrive at a verdict and has been discharged, the trial has come to an end, the case stands for trial upon the issues of fact as though no trial had been had, and chapter 335 of the Session Laws of 1923 (section 7643, Supplement to the Compiled Laws of 1913), which provides for the court granting a subsequent motion for a directed verdict upon the failure of the jury to agree to a verdict if upon the evidence the moving party were entitled to such directed verdict, does not authorize the court to enter judgment after a jury which failed to agree had been discharged.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by George Knorr against the Velva Supply & Machine Company. Judgment for plaintiff, and defendant appeals.

Reversed.Nestos, Herigstad & Stenersen, of Minot, for appellant.

E. R. Sinkler and G. O. Brekke, both of Minot, for respondent.

BIRDZELL, J.

This is an action to recover $383.50 alleged to be due from the defendant on account of the sale by the latter of certain live stock belonging to the plaintiff for which that amount was received but not paid to the plaintiff. The defense alleged was payment. The action was tried in the district court of Ward county before a jury. At the conclusion of the testimony the plaintiff moved for directed verdict. The motion was denied and the case was submitted to the jury. The jury was unable to arrive at a verdict and was discharged. Several weeks thereafter the plaintiff moved for a judgment non obstante. The motion being granted and the judgment entered, the defendant appeals. In the view we take of the case the facts disclosed by the record are unimportant, and only sufficient of them will be stated to show the nature of the case.

In September, 1925, plaintiff delivered some cattle to the defendant. They were shipped to market, and shortly thereafter the defendant mailed to the plaintiff a sales slip showing a balance due to the plaintiff of $383.50. With the slip the defendant inclosed a check on the First State Bank of Velva, dated September 28, 1925, for the balance shown to be due. A little more than two weeks after the check was given, the bank upon which it was drawn closed without the check having been paid. It appears that the plaintiff had not proceeded with diligence to effect a collection on the check, whether excused on account of illness or otherwise, or whether it was in fact presented and dishonored, we need not now determine.

[1][2] The principal contention of the appellant is that the judgment is erroneous because entered upon an order of the trial court in ruling upon a motion for which no legal foundation existed and at a time when the case was at issue and triable only before a jury. The latter contention is predicated, of course, upon the fact that the issues had not been resolved by a verdict of the jury because it had failed to agree, nor by any action taken by the court and jury before the jury was discharged. The respondent, on the other hand, contends that under the practice prescribed or recognized by chapter 335 of the Session Laws of 1923 (section 7643, Supplement to the Compiled Laws of 1913), the court had ample power to entertain a motion after the discharge of the jury upon their failure to agree and to direct the entry of a judgment for the moving party.

The respective contentions are based upon the following portion of the statute:

“When at the close of the testimony any party to the action moves the court to direct a verdict in his favor, and the adverse party objects thereto, such motion shall be denied and the court shall submit to the jury such issue or issues, within the pleadings on...