Woodsville Guaranty Savings Bank v. Albert E. Rogers

• Decision Date: 09 October 1909
• Citation: 74 A. 85,82 Vt. 468
• Parties: WOODSVILLE GUARANTY SAVINGS BANK v. ALBERT E. ROGERS ET AL
• Court: Vermont Supreme Court

74 A. 85

82 Vt. 468

WOODSVILLE GUARANTY SAVINGS BANK v. ALBERT E. ROGERS ET AL

Supreme Court of Vermont

October 9, 1909

October Term, 1908.

ASSUMPSIT. Plea, the general issue. Trial by jury at the June Term, 1908, Orange County. At the close of all the evidence plaintiff moved for a directed verdict. Motion overruled, pro forma, and verdict directed for defendants, and judgment thereon. The plaintiff excepted. The opinion states the case.

Judgment reversed and cause remanded.

Hosford & Wright and Smith & Smith for the plaintiff.

R M. Harvey for the defendants.

Present ROWELL, C. J., MUNSON, WATSON, and MILES, JJ.

OPINION

MILES

This is an action of general and special assumpsit counting upon a promissory note payable to the order of the plaintiff and signed by the defendant, Rogers, upon its face and by the defendants, Conant and Flanders, in blank, upon its back.

The defence is put upon three grounds: first, that the defendants, Conant and Flanders, were indorsers and that demand had not been made and notice given, sufficient in law to bind those defendants; second, that, at most, those defendants were mere sureties and had been discharged by an extension of time for payment to the principal defendant, Rogers, and third, that the note had been paid.

On trial the note was offered and received in evidence and the plaintiff then rested its case. The defendants, Conant and Flanders, then moved for a verdict in their favor upon the ground that there was no evidence supporting the plaintiff's case. The motion was overruled and an exception allowed. The defendants, Conant and Flanders, then put in evidence and rested their case. The plaintiff thereupon moved for a verdict in its favor. The defendants opposed the plaintiff's motion and did not renew their motion, but insisted that the case should be submitted to the jury. After a lengthy discussion of the plaintiff's motion, the court, pro forma, directed a verdict for the defendants, to which the plaintiff excepted. The plaintiff also excepted to the refusal of the court to direct a verdict in its favor.

The defendants claim that the plaintiff waived its right to go to the jury by moving for a verdict in its favor, and because it did not expressly request the court to go to the jury, and they cite Robinson v. Larabee, 58 Vt. 652 5 A. 512, and Davis v. St. Albans, 42 Vt. 585, as authority for that claim. We think that neither of those cases support the defendants' contention. In both of those cases it is apparent that they were understandingly submitted to the court at the close of all the evidence. In the case at bar there is nothing to distinguish it from the ordinary case of overruling a motion for a verdict for one party or the other at the close of all the evidence. The rule in such cases is well stated in Bass v. Rublee, 76 Vt. 395, on page 400, 57 A. 965, 966, as follows:--

"The province of the court on such a motion is not to weigh the evidence and ascertain where the preponderance is, but it is limited strictly to determining whether there is or is not evidence from which, if believed, it may reasonably be inferred, in legal contemplation, that the fact affirmed exists, excluding the effect of all modifying or countervailing evidence, and on overruling the motion, no judgment is rendered against the...