delivered the opinion of the court.
The complaint alleges the execution and i.delivery by defendant of a note in the principal sum of $2,500, due November 1,
The cause was tried before the court and a jury. The note was produced and admitted in evidence without objection. Plaintiff then rested. The evidence concerning the consideration for the giving of the note was conflicting. The defendant, testifying in his own behalf, alone, stated that he was never offered a twenty-first interest in the capital stock of the plaintiff company, never voted any stock at any meeting of the stockholders, never attempted to induce any person to take any stock in the corporation, never considered himself a stockholder, and never agreed to subscribe or pay for any stock in the company. The
At the close of all the testimony the defendant moved the Court to direct a verdict in his favor, upon the ground that section 5878 of the Revised Codes provides that an instrument is negotiable when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof, and on the further ground that ‘‘there was no agreement shown that the defendant ever received or accepted the consideration testified about” as consideration for the note. This motion the court denied, but sustained plaintiff’s motion to direct a verdict, upon the ground that it was a holder in due course. Defendant thereafter made no request for the submission of any issue to the jury. Thereupon the court charged the jury to return a verdict for plaintiff, which was accordingly done, and judgment entered thereon. A motion for a new trial was made and overruled, and these appeals are from the judgment and from the order of the court denying defendant’s motion for a new trial.
All of appellant’s specifications of error deal with the correctness of the rulings of the trial court, finally resulting in the
The exact question here involved has not been heretofore decided by this court. It has, however, received careful consideration by many of the courts of the country, both state and federal (38 Cyc. 1582), and it is held that where, as in the instant case, both parties request a peremptory instruction and do nothing more, it is to be assumed that they deem the material facts undisputed and submit the cause to the trial court for determination of the inferences proper to be drawn from them. (St. Louis etc. R. Co. v. Mulkey, 100 Ark. 71, Ann. Cas. 1913C, 1339, 139 S. W. 643; Wells Fargo & Co. Express v. Townsend, 134 Ark. 560, 204 S. W. 417; Share v. Coats, 29 S. D. 612, 137 N. W. 402; Van Woert v. Modern Woodmen, 29 N. D. 442, 151 N. W. 224.) The rule is well stated in 38 Cyc. supra, as follows: “The general rule is that a request by both parties for a directed verdict amounts to a submission of the whole case to the court, and its decision upon the facts has the same effect as the verdict of a jury, and will not be disturbed when
The record before us contains no requested instructions to the jury, and nothing appears in; it to indicate that, at the time of the ruling complained of, appellant desired the disputed facts determined by the jury. Chessman v. Hale, 31 Mont. 577, 3 Ann. Cas. 1038, 68 L. R. A. 410, 79 Pac. 254, is cited to the point that section 6762 of the Bevised Codes was disregarded by the court below, and that he was thereby denied his constitutional right of a trial by jury. Neither ¡that case nor the California cases therein referréd to are inimical to the law herein declared. As will be noticed by a casual reading of the opinions of Chief Justice Brantly and Commissioner Poorman, the court below in that ease by its ruling forced the plaintiff to treat the case as one in equity. In the case before us, a jury had already been impaneled and sworn, and testimony, conflicting in character on a material issue, adduced before it which, upon seasonable motion addressed to the court would doubtless have been presented to the jury for their consideration. The action of both parties, however, in moving for a directed verdict at the close of the testimony, transferred the functions of the jury to the court. A finding of fact by the court under such circumstances should not be set aside by a reviewing court, nnlesa clearly against the weight of the evidence. (First Nat. Bank v. Hayes, 64 Ohio St. 100, 59 N. E. 893; Perkins v. Commissioners, 88 Ohio St. 495, 103 N. E. 377; Beuttell v. Magone, supra; Empire Cattle Co. v. Atchison Ry. Co., supra; 38 Cyc. 1382.)
The question of the credibility of the witnesses having been submitted to the court below, along with other disputed ques
The judgment and order appealed from are affirmed.
Affirmed.