Rogers Lumber Company, a Corp. v. Clark
| Decision Date | 16 May 1925 |
| Citation | 204 N.W. 184,52 N.D. 607 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Moellring, J.
From a judgment in favor of the defendant, Clark, entered upon motion for judgment notwithstanding the verdict, plaintiff appeals.
Affirmed.
McGee & Goss and J. C. Miller, for appellant.
"To justify an order for judgment notwithstanding the verdict the record must affirmatively show, not only that the verdict is not justified by the evidence, but it must also appear that there is no reasonable probability that the defects in the proof necessary to support the verdict may be remedied on another trial." Meehal v. G. N. R. Co., 13 N.D 432, 101 N.W. 183.
"It is not sufficient to warrant such judgment that the evidence was such that the trial court ought to have granted either a motion for a directed verdict, or for a new trial on the ground of insufficiency of the evidence to sustain the verdict, but it must, also, appear that there is no reasonable probability that the defects in or objections to the proof necessary to support the verdict may be remedied upon another trial." First State Bank v. Kelly, 30 N.D. 84, 152 N.W. 125.
"A verdict will not be disturbed on appeal which is supported by at least some competent testimony, if no error of law has been committed by the court." Akin v. Johnson, 28 N.D. 205, 148 N.W. 535.
"On a motion to reverse a judgment on the ground of insufficiency of the evidence, the only question at issue is whether there is sufficient evidence to support the verdict, and the fact that there may be much evidence in contradiction thereof is immaterial." Oakland v. Nelson, 28 N.D. 456 149 N.W. 337.
28 C. J. 1003; Manning v. Alger, 78 Iowa 185, 42 N.W. 643; Tyson v. Reinecke, 25 Cal.App. 696, 145 P. 153; Emerson v. Dye, 4 Ky. L. Rep. 236; 6 Ky. L. 592; 13 Ky. Op. 247; Harvey v. First Nat. Bank, 56 Neb. 320, 76 N.W. 870.
"Under a contract of guaranty to cover an open account or other form of indebtedness to remain in force until notice, the guarantor's liability not to exceed a certain amount, his liability is not limited to the original term of credit given on a sale, and therefore the taking of the debtor's notes for goods sold on account after the account has become due does not release the guarantor." Burt v. Butterworth, 19 R. I. 127, 32 A. 167.
T. S. Stuart, for respondent.
"Judgment notwithstanding the verdict should not be rendered unless it clearly appears from the evidence that the party making the motion is entitled to it as a matter of law upon the merits if it appears probable from the record that a different showing can in good faith be made on another trial the motion should be denied." AEtna Indemnity Co. v. Schroder, 12 N.D. 110, 95 N.W. 436.
Northern State Bank v. Bellamy (N.D.) 125 N.W. 888.
"A promise in writing stating that the promisor will hold himself liable for the value of the goods the promisee should be disposed of to furnish to a third person up to a certain amount, should the third person not pay as agreed upon, is a conditional guaranty and the promisor is entitled to notice of the acceptance of his proposal, the amount of goods furnished in pursuance thereof, and of the terms and time of payment, before he could be held liable." Rapelye v. Bailey, 3 Conn. 438, 8 Am. Dec. 199.
Plaintiff brings action upon the following written instrument.
Please let S. S. Kunkel have this bill of lumber, and I will guarantee payment. Better take his note.
C. J. Clark."
In its complaint the plaintiff alleges that under and pursuant to this instrument it "sold and delivered to the defendant, Kunkel, lumber and building materials and took his note therefor, said note was dated November 22nd, 1919, wherein and whereby defendant promised and agreed to pay to the plaintiff on September 1st, 1920, $ 289.95, with interest from November 22nd, 1919, at 10% per annum; that there is a credit on said note dated April 24th, 1920, by return of merchandise of $ 9.50; that thereafter as renewal of said indebtedness and including an additional item of lumber and building materials, included in said building, defendant S. S. Kunkel, executed to plaintiff his promissory note dated March 16th, 1921, wherein and whereby and by the terms thereof the defendant promised and agreed to pay to the plaintiff the sum of $ 327.32, together with interest thereon from March 16th, 1921, at 10% per annum." That no part of said indebtedness has been paid. The defendant Kunkel made default. The defendant Clark appeared and answered. In his answer the defendant Clark admitted that he signed the said instrument above set forth; and alleged that said instrument was attached to a certain bill of lumber, the value of which aggregated about $ 25.00; and that the said instrument was intended to, and did, apply to such bill only. The answer admitted the execution and delivery by Kunkel of the two notes set forth in plaintiff's complaint, and asserted that the defendant became released and discharged from all obligation by virtue of the extension of time granted to said Kunkel by reason of the execution and delivery by him to the plaintiff of the note dated March 16th, 1921, and the acceptance of such note by the plaintiff. The case was tried upon the issues thus raised. A verdict was returned in favor of the plaintiff and against the defendant, Clark, for the sum of $ 204.75, with interest at ten per cent. per annum from November 22nd, 1919. The defendant moved for judgment notwithstanding the verdict. The motion was granted, and plaintiff has appealed from the judgment.
The sole question before us is whether plaintiff is entitled to judgment notwithstanding the verdict. In other words, the question presented for determination is whether, upon the whole record, it clearly appears that plaintiff's alleged cause is so wholly devoid of merit as to entitle the defendant, Clark, to a judgment of dismissal upon the merits as a matter of law. First State Bank v. Kelly, 30 N.D. 84, 152 N.W. 125, Ann. Cas. 1917D, 1044.
The evidence adduced upon the trial shows that the plaintiff owns and operates a lumber yard at Crosby, North Dakota; that the defendant Clark is the president of a bank at Crosby and owns a controlling interest in such bank. The bank owned an eighty acre tract of land which it had rented to the defendant Kunkel; and Kunkel had purchased a quarter section of land from the bank on the crop payment plan. He had paid nothing on said contract at the time the instrument in suit was executed; but there is nothing to indicate that there was any default in the contract, and at the time of the trial he was still occupying the land covered thereby.
On July 24th, 1919, the defendant Kunkel went to the plaintiff's lumber yard at Crosby for the purpose of purchasing some lumber with which to repair or build a barn. It appears that a barn situated on the eighty acre tract had been damaged by a wind storm so that it became necessary to either repair it or build a new one. The defendants testified that if a new barn was built on the eighty acre tract, Kunkel was to have the right to remove it therefrom. Kunkel discussed the matter of what building material was necessary with the agent of the plaintiff and such agent prepared the statement of the items thereof. There is a conflict in the evidence as to the amount of materials so listed on such statement and the value thereof. It is undisputed, however, that Kunkel obtained building material aggregating in value $ 204.75. As regards the circumstances in which the instrument in suit was executed plaintiff's agent testified:
On direct examination:
Q. State the circumstances under which that was received by you. What led up to it?
A. Well, I figured a bill for him I think on a piece of paper. And then he said, give me the figures. And he took them out and he came back with this order.
Q. Had you refused him credit for that amount?
A. No I hadn't refused him credit: because we hadn't come to that point of the sale yet.
Q. Well, had you given him to understand that you wanted some security?
A. Well, I didn't really think there was going to be a sale, to start with. So I didn't talk very enthusiastic to him about making the sale. And when he came back with the order why I figured it was good enough and we would make a deal.
Q. And did you extend any credit on that order?
A. I did. . . .
On cross-examination:
Q. You didn't ask him to get Mr. Clark's guarantee? A. No.
Q. And you didn't know...
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