Thomas v. Williamson

• Decision Date: 20 March 1939
• Docket Number: 33625
• Court: Mississippi Supreme Court
• Parties: THOMAS v. WILLIAMSON

187 So. 220

185 Miss. 83

THOMAS v. WILLIAMSON

No. 33625

Supreme Court of Mississippi, Division A

March 20, 1939

APPEAL from the circuit court of Warren county HON. R. B. ANDERSON Judge.

Action between Ernest Thomas and George Williamson. From an adverse judgment, the former appeals. Affirmed.

Affirmed.

Dabney & Dabney, of Vicksburg, for appellant.

The court erred in directing a verdict for the plaintiff appellee. The circuit court erred in affirming the judgment of the county court.

There was a disputed question of fact that should have been presented to the jury. Williamson's testimony is to the effect that he was to be paid his commission as soon as he procured a party ready and able to make the loan. Thomas' testimony is to the effect that unless he could make use of the money he was not liable to pay Williamson a commission.

It appears from the testimony of the appellant that he made it clear to the plaintiff that unless he could arrange to take up the loan with the Greenville Bank he would not have any use for the loan. It further appears that Mr. Williamson at that time knew that the loan could be arranged for, but that Thomas had not committed himself definitely to accept the loan. On the strength of Thomas' testimony it is clear that there was no meeting of the minds up to that point. Now some of this testimony is contradicted by Williamson. But nevertheless Thomas pleaded that the agreement was dependent on a condition precedent and he has proven this condition sufficiently to have had his case submitted to the jury. We submit that it was error for the court to have directed a verdict for the appellee, and the cause should be reversed and remanded for a new trial.

Wm. I McKay, of Vicksburg, for appellee.

It goes without saying that the absolute duty and burden rested upon appellant to do two things, both sufficiently to arrange or plead and also sufficiently to prove a legal defense. The appellant's evidence does not show or support any legal defense. The sum and substance of appellant's testimony, with all fair and reasonable inferences therefrom, is to the immaterial effect that appellee knew that appellant would not want the new loan if the old loan could not be taken at a profit satisfactory to appellant. But there is no proof whatever in appellant's testimony that appellee agreed that he was to have no commission if the old loan could not be taken up on terms satisfactory to appellant.

The testimony of the appellant himself does not tend to support, but completely disproves, the unpleaded defense that appellee agreed not to charge any commission for his services in finding and arranging for the new loan, if appellant should thereafter decide not to take up the old loan for economical considerations.

In a majority of the jurisdictions wherein the question has arisen, it has been held that where each of the parties to an action requests the court to direct a verdict in his favor, and makes no request that the jury shall be allowed to determine any question of fact, the parties will be presumed to have waived the right to a trial by jury, and to have constituted the court a trier of questions both of law and of fact.

18 A. L. R. 1433; 69 A. L. R. 633; Share v. Coats, 29 S.D. 603, 137 N.W. 402.

As to the questions to be considered by the reviewing court in cases involving a verdict directed by the lower court following requests therefor by both parties, the decisions and statements, while more or less of the same general tenor, are so various and of such different phrasing that it is almost impossible to construct any general rule. However, it may be said that a verdict directed by the court has the same conclusive effect and is governed by the same rules as in one rendered by a jury.

Bank v. Seldomridge, 153 C. C. A. 147, 240 F. 111, 249 U.S. 1; Rice v. Bennett, 29 S.D. 341, 137 N.W. 359; Section 577, Code of 1930.

OPINION

Griffiith, J.

If we were to take some two or three of the responses by the appellant to leading or suggestive questions by his attorney and consider them as if detached from his entire testimony, and from the facts which are undisputed, it might be deemed that there was enough in some of his responses, so made, to take the case to the jury. The general rule is, however, that in determining whether the evidence make a real and substantial issue of fact, the whole of the evidence in behalf of the party who insists that it is sufficient to go to the jury, together with the undisputed facts, and not merely certain selected parts thereof, is to be considered. A detached part when separately considered might have a particular meaning, but when taken with all the other parts would mean something else. 64 C. J. p. 444, and cases under note 33.

And when, as here, the only witness introduced, or who gave any testimony in behalf of one of the...