Smith v. Goodin

• Decision Date: 02 June 1922
• Docket Number: 2500.
• Citation: 206 P. 1067,46 Nev. 229
• Parties: SMITH ET AL. v. GOODIN.
• Court: Nevada Supreme Court

206 P. 1067

46 Nev. 229

SMITH ET AL. v. GOODIN.

No. 2500.

Supreme Court of Nevada

June 2, 1922

Appeal from District Court, Washoe County; Thomas F. Moran, Judge.

Action by E. C. Smith and another against J. T. Goodin. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Moore & McIntosh, of Reno, for appellant.

Stoddard & Salisbury, of Reno, for respondents.

COLEMAN J.

This action was instituted to recover an amount alleged to be due the plaintiffs (respondents) on account of the purchase of certain stock upon the request of the defendant (appellant). From a judgment in favor of the plaintiffs, the defendant has appealed. We will allude to the parties as they were designated in the trial court.

The undisputed facts are these: On March 25, 1919, the defendant employed the plaintiffs, who were stock brokers, to purchase for his account 2,000 shares of stock. The defendant, who resides at Lovelock, Nev., telephoned the order to the plaintiffs at their Reno office. In giving the order, he directed that the stock be sent to him at Lovelock, through the bank, with a draft attached. He had never had any business dealings with the plaintiffs prior to this transaction, and did not know the manager of the company (to whom we will refer as the manager), who took the order over the telephone. On the evening of the day of the order the defendant went to Reno and called at the office of the plaintiffs, where for the first time he met in person and talked with the manager being then informed that his order had been filled; the purchase having been made on San Francisco exchange.

There is but one disputed fact in the case to which we need to allude, and that goes to the basis of the defense. It is claimed on the part of the defendant that two days after the stock had been purchased, as stated, he gave the plaintiffs instructions over the telephone from Lovelock to sell the stock, credit him with the proceeds, and draw on him for the difference, and that the plaintiffs agreed to do so. The plaintiffs deny having received such order to sell. The lower court found for the plaintiffs, and rendered judgment accordingly.

The question to be determined is, Is the evidence sufficient to justify the finding and decision of the court? It is said on behalf of the respondents that the evidence is conflicting that there is substantial evidence to support the findings and decision of the court, and hence the judgment must, under a long line of decisions, be affirmed. The evidence is conflicting, and there is substantial evidence to support the judgment, and it is true that it is a well-recognized rule in this state that when the evidence is conflicting and there is substantial evidence to sustain the judgment it will not be disturbed; but to this rule, as to nearly all well-established rules, there is an exception, as well recognized by this court as is the general rule, and as promptly and surely invoked and applied when applicable. We know of no better statement of the exception than is found in the language of the court in the case of Watt v. Nevada C. R. R. Co., 23 Nev. 154, 44 P. 423, 46 P. 52, 726, 62 Am. St. Rep. 772, where it is said:

"Notwithstanding the well-established rule which has been so often announced by this and other courts that, 'where there is a substantial conflict in the evidence the appellate court will not disturb the decision of the court below,' there is another rule as well established and of as binding force, both in actions at law and in equity, addressed to the conscience and judgment of the court of last resort, which cannot be ignored without doing violence to the plain principles of common justice in many cases, to wit: 'If there be no substantial conflict in the evidence upon any material point and a verdict or decision be against such evidence upon such point, or where the verdict or decision strikes the mind, at first blush, as manifestly and palpably contrary to the evidence, the Supreme Court will direct a new trial.' Hayne, New Trial and Appeal, § 288, and citations; Barnes v. Sabron, 10 Nev. 217.

The duty of the Supreme Court to look into the evidence and grant a new trial 'in cases where it appears that the evidence taken all together does not support the verdict or decision or judgment of the court,' is made clear by Stats. 1893, p. 88, as authoritatively construed in Beck v. Thompson, 22 Nev. 121. In that case the court, while recognizing the rule applicable in case of conflict of evidence as given above, said: 'As already remarked, this statute (1893) has worked an important and quite radical change, and in a proper case, without regard to whether there are or are not findings, seems to impose upon this court the duty of reviewing the evidence, and determining whether the final result is supported by it. This statute was undoubtedly designed to cut through many technicalities that have so often prevented cases from being considered upon their merits, and should be construed in the same broad spirit in which it was enacted, but at the same time, with such conservatism as will not result in the reversal of a case where substantial justice has been done. * * * Where there is a substantial conflict in the testimony, the appellate court should undoubtedly not substitute its judgment for that of the trial court, and should only interfere where, upon all the evidence, it is clear that a wrong conclusion has been reached.' "

The rule thus stated was recognized at an early date in an opinion by Lewis, C.J., in Reed v. Reed, 4 Nev. 395; and in Beck v. Thompson, 22 Nev. 109, 36 P. 562, it is said that the appellate court should reverse the judgment upon the ground of insufficiency of the evidence to sustain the judgment "where, upon all the evidence, it is clear that a wrong...