McCowan v. Northeastern Siberian Co.
| Decision Date | 26 February 1906 |
| Citation | 84 P. 614,41 Wash. 675 |
| Parties | McCOWAN v. NORTHEASTERN SIBERIAN CO., Limited. |
| Court | Washington Supreme Court |
Appeal from Superior Court, King County; George E. Morris, Judge.
Action by E. B. McCowan against the Northeastern Siberian Company. From a judgment for plaintiff, defendant appeals. Affirmed.
John P Hartman, for appellant.
Kirkpatrick & Price, for respondent.
The respondent brought this action against the appellant to recover a balance claimed by him to be due for services rendered the appellant. In his complaint he alleged that he was employed by the appellant to act as its confidential agent, attorney in fact, and manager in connection with its business in Japan, Siberia, and elsewhere; and that his services began on April 23, 1903, and ended on April 7, 1904 that by the terms of his contract of employment the appellant agreed to pay him the sum of $2,500 for a period of five months and $500 a month thereafter so long as he should remain in its employ. He then alleged that he was entitled to receive for his services the sum of $5,733; that he had received $4,947, which left a balance due him of $785, in which amount he demanded judgment. For answer the appellant admitted that it had employed the appellant to render services for it as alleged in the complaint, but that it had agreed to pay him therefor the sum of $2,500, and no more that there had come into the possession of the respondent during the course of his employment large sums of money, and that he had retained thereof $4,947, which was $2,477 in excess of the amount due him under his contract, and demanded judgment against him for that sum. On the issues thus made a trial was had before the court and a jury which resulted in a verdict and judgment in favor of the respondent for the amount claimed by him. This appeal is from that judgment.
It is first assigned that the court erred in refusing to grant the appellant's motion for a nonsuit on the ground that the evidence introduced on behalf of the respondent was insufficient to sustain a verdict in his favor. In his argument in support of the contention the appellant's counsel quotes from the decisions of the Supreme Court of the United States, and from those of this state following that court, the rule to the effect that the question before the court is not whether there is literally no evidence on the question at issue, but whether there is any upon which the jury can properly proceed to find a verdict for the party producing it--the party on whom the burden of proof is imposed; and he argues further that while in this case there may be a scintilla of evidence in favor of the respondent, there is no substantial evidence sustaining his side of the controversy, and hence no sufficient evidence to sustain the verdict. The rule of law here announced by the appellant must be conceded. Unquestionably if it be true that there was no more than a scintilla of evidence in favor of the respondent, or, to state the rule in another form, no substantial evidence in his favor, then the judgment must be set aside. The question therefore is, was there any substantial evidence on which the judgment can be sustained?
On the immediate question of the amount of compensation the respondent was to receive there was no direct testimony save his own, given while testifying on his own behalf, and that of the appellant's witnesses testifying in contradiction. The respondent, after testifying that the contract of employment was made between himself and one John Rosene, the resident director and manager of the appellant acting on its behalf, and of the negotiations leading up to his employment continued as follows: 'A day or two before we sailed Mr Rosene said: 'Now about your salary.' He said: I said: 'That would not be right, because I...
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