Shobe v. Smith

• Decision Date: 08 June 1916
• Docket Number: 1915
• Parties: M. J. SHOBE v. J. H. SMITH
• Court: North Dakota Supreme Court

158 N.W. 1065

34 N.D. 335

M. J. SHOBE v. J. H. SMITH

No. 1915

Supreme Court of North Dakota

June 8, 1916

From a judgment of the District Court of Ramsey County, Buttz Judge, dismissing plaintiff's action, he appeals.

Affirmed.

W. M Anderson and Fred R. Stevens, for appellants.

The law of this state is settled, that before a judgment notwithstanding the verdict can be entered, the defense or cause of action must be defective in matter or substance, and beyond the power of amendment. Richmire v. Andrews & G Elevator Co. 11 N.D. 454, 92 N.W. 819; 2 Enc. Pl. & Pr 912, and cases cited; Nelson v. Grondahl, 12 N.D. 130, 96 N.W. 299; Welch v. Northern P. R. Co. 14 N.D. 19, 103 N.W. 396; Pease v. Magill, 17 N.D. 166, 115 N.W. 260; Johns v. Ruff, 12 N.D. 74, 95 N.W. 440; AEtna Indemnity Co. v. Schroeder, 12 N.D. 110, 95 N.W. 436; Meehan v. Great Northern R. Co. 13 N.D. 432, 101 N.W. 183; Kerr v. Anderson, 16 N.D. 36, 111 N.W. 614; Houghton Implement Co. v. Vavrosky, 15 N.D. 308, 109 N.W. 1024.

A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, is conclusively settled by a judgment therein as to the parties and those in privity with them. 23 Cyc. 1215; Ottow v. Friese, 20 N.D. 86, 126 N.W. 503; Borden v. McNamara, 20 N.D. 225, 127 N.W. 104, Ann. Cas. 1912C, 841.

Middaugh, Cuthbert, Smythe, & Hunt, for respondent.

"Where it is clear upon the whole record that the moving party is entitled to judgment as a matter of law," the motion should be granted. Richmire v. Andrews & G. Elevator Co. 11 N.D. 453, 92 N.W. 819; 2 Enc. Pl. & Pr. 912, and cases cited; Cruikshank v. St. Paul F. & M. Ins. Co. 75 Minn. 266, 77 N.W. 958; Marquardt v. Hubner, 77 Minn. 442, 80 N.W. 617; Bragg v. Chicago, M. & St. P. R. Co. 81 Minn. 130, 83 N.W. 511; Merritt v. Great Northern R. Co. 81 Minn. 496, 84 N.W. 321, 9 Am. Neg. Rep. 61.

A motion for judgment will never be granted where there was or is an issue for the jury to pass upon. There must, however, be some substantial fact, one of some probative force. Mt. Adams & E. P. Inclined R. Co. v. Lowery, 20 C. C. A. 596, 43 U. S. App. 408, 74 F. 463; Felton v. Spiro, 24 C. C. A. 321, 47 U. S. App. 402, 78 F. 576, 2 Am. Neg. Cas. 682; Travelers' Ins. Co. v. Randolph, 24 C. C. A. 305, 47 U. S. App. 260, 78 F. 754; Minahan v. Grand Trunk Western R. Co. 70 C. C. A. 463, 138 F. 37; Coulter v. B. F. Thompson Lumber Co. 74 C. C. A. 38, 142 F. 706; Grand Trunk R. Co. v. Ives, 144 U.S. 408, 36 L.Ed. 485, 12 S.Ct. 679, 12 Am. Neg. Cas. 659.

A mere scintilla of evidence is not sufficient to require the submission of a case to the jury. People v. People's Exch. 126 Ill. 466, 2 L.R.A. 340, 18 N.E. 774; Grube v. Missouri P. R. Co. 98 Mo. 330, 4 L.R.A. 778, 14 Am. St. Rep. 645, 11 S.W. 736; Finney v. Northern P. R. Co. 3 Dak. 270, 16 N.W. 500; Orleans v. Platt, 99 U.S. 677, 25 L.Ed. 404; Pence v. Langdon, 99 U.S. 578, 25 L.Ed. 420, 13 Mor. Min. Rep. 32; Marion County v. Clark, 94 U.S. 278, 284, 24 L.Ed. 59, 61; Hendrick v. Lindsay, 93 U.S. 143, 23 L.Ed. 855; Akin v. Johnson, 28 N.D. 205, 148 N.W. 535; Pleasants v. Fant, 22 Wall. 116, 121, 122, 22 L.Ed. 780, 782, 783.

Where the evidence shows conclusively that on a new trial plaintiff would be unable to establish that he ever had the ability required to perform the contract, the motion was properly granted. McVeety v. Harvey Mercantile Co. 24 N.D. 245, 139 N.W. 586, Ann. Cas. 1915B, 1028; Miller v. Bank of Harvey, 22 N.D. 538, 134 N.W. 745; Houghton Implement Co. v. Vavrosky, 15 N.D. 308, 109 N.W. 1024; Meehan v. Great Northern R. Co. 13 N.D. 432, 101 N.W. 183; Welch v. Northern P. R. Co. 14 N.D. 19, 103 N.W. 396; AEtna Indemnity Co. v. Schroeder, 12 N.D. 120, 95 N.W. 436.

OPINION

GOSS, J.

This is an appeal from a judgment of dismissal entered upon a motion for judgment non obstante after a verdict for the plaintiff. If there was any substantial conflict in the testimony properly receivable upon the issues for trial, dismissal was error.

The complaint recites that for a cause of action on July 15, 1911, plaintiff was the owner and in possession of two tracts of land, a half section in twenty-eight, and 133 acres in section twenty-seven, in a township in Ramsey county. "That plaintiff was owing defendant various sums of money, and defendant made an offer to the plaintiff that if he would give him a deed to the half section and relinquish his interest to the other tract and one half of the crop raised on said land for that year, defendant would assume all of the debts of every description which said plaintiff owed on the land and to the defendant, and pay plaintiff in addition thereto the sum of $ 900 , as a settlement in full of their mutual accounts, when transfer was made of said land. That plaintiff immediately accepted said offer, and on October 6, 1911," conveyed the same to defendant. "That by reason thereof there is now due and owing from the defendant to the plaintiff $ 900, of which payment has been demanded and refused." The answer is a general denial coupled with an allegation of purchase of said land by defendant at $ 27.50 per acre for the half section, and $ 30 per acre for the 133-acre tract; that encumbrances in the sum of $ 3,230.47 were against the half section, which left a balance of $ 5,569.53 to be applied upon plaintiff's indebtedness to defendant; that upon the 133-acre tract there was due to others $ 2,929.48, leaving the value of plaintiff's equity therein $ 1,060.52 at the contract price of $ 30 per acre, or $ 3,990 therefor. Further, on the transfer of said land to him, defendant credited plaintiff on debts owing him specified certain amounts, which still left a balance due defendant from plaintiff of $ 2,814, for which a note dated January 2, 1912, was given and secured by chattel mortgage. As a matter of counterclaim, defendant alleges plaintiff executed his note to him for $ 45 and interest from July 11, 1912, which is due and unpaid; and that between May 10, 1912, and January 24, 1914, various loans and advances on account were made by defendant to plaintiff in the further sum of $ 424.73. He demands judgment for the amount of said counterclaims and for a dismissal of plaintiff's cause of action.

Is there any substantial proof that the contract of sale was made as is set forth in plaintiff's complaint, for a satisfaction of "all of the debts of every description which said plaintiff owed on the land and to the defendant, and to pay the plaintiff in addition thereto the sum of $ 900, as a settlement in full of their mutual accounts;" or does the uncontradicted evidence establish that the sale was for so much per acre, to be applied upon indebtedness owing by plaintiff to defendant, as claimed by defendant.

Plaintiff's version of the transaction, on direct examination, is given by him in the following language:

Smith "said, 'I come up here for the purpose of seeing if you wanted to sell that land,' and I told him I did. 'Well,' he says, 'I tell you what I will do; I have got it all figured out here, and I tell you what I will do,--I will clear your personal property,' he says, 'that I hold against you and I will also give you $ 900 in money,' he says; and I sanctioned it. He said I could have half the crop and he would take the other half. There was a mortgage against my horses for about $ 2,800 or $ 2,730 and interest. He made a memorandum at the time, had it with him, and took it away with him. He made no statement as to how much he claimed I was owing him; that we didn't need to be in a hurry about drawing the deeds up. He would let me know when he wanted to draw the deeds. The Missus and Claude and Lena, my two children, were present at the house when this deal was made. In October, 1911, my wife and I went to defendant's bank and executed the deeds. Then he says, 'That old mortgage I will hold for you in order to keep other men from coming in and taking your property away from you,' and I thanked him for it. I delivered to Smith one half of the crop that was raised on the land that year, and relinquished to him the Bursell land" (the 130-acre tract held under contract). Cross-examination brought out the fact that plaintiff was owing many other people considerable amounts.

And testifying as to the transactions at the time of the transfer, the following questions were asked and answers given:

Q. However, Mr. Smith was to clean up all your mortgage indebtedness, was he not?

A. Yes.

Q. That is the deal as you understand it?

A. That is correct.

Q. Then he was to clean up all of your mortgage indebtedness, was he?

A. Yes.

Q. At the time you and Smith were talking over this deal, was there not any understanding, Mr. Shobe, about how much an acre this was going to amount to?

A. Yes.

Q. What was it?

A. $ 27.50 for the two home quarters, and $ 30 for the Bursell quarter, as we always called it.

Q. Smith agreed to give you, or allow you, $ 27.50 for the one-half section?

A. Yes.

Q. And $ 30 an acre for the 133 acres, or Bursell land?

A. Yes.

Q. When you had this talk with Smith and he agreed to give you the $ 27.50 for the half section, and the $ 30 an acre for the 133 acres, did you also figure over the indebtedness you had?

A. Well, I didn't. He did. That is he said he did.

Q. You had debts aside from those that you were owing Smith, did you not?

A. Yes.

Q. And you know whether or not Smith at that time, when he was figuring over this deal with you, in June, 1911, knew of these debts and obligations you owed?

A. Well, I can't say positively, but I judge he did; they were all in Crary.

Q. Didn't you have a pencil and paper there doing any figuring on this deal?

A....