247 F. 869 | 8th Cir. | 1917
(after stating the facts as above). [1, t\ It is the duty of the trial court to direct a verdict at the close of the evidence in two classes of-cases: (1) That class in which the evidence is undisputed; and (2) that class in which the evidence is conflicting, hut is of so conclusive a character that the court, in the exercise of a sound judicial discretion, would set aside a verdict in opposition to it. And when the trial court has directed a verdict upon conflicting evidence the appellate court may not lawfully reverse it, or the judgment founded upon it, unless, upon a consideration of the evidence, it is convinced that it, was not of such a conclusive character that the court below, in the exercise of a sound judicial discretion, should not have sustained a verdict in the opposite direction. Patton v. Texas & Pacific
It is true that Lyons and Kilbourn told her that Bard was good, that he was worth $5,000 above his debts, that there was no harm, and they would guarantee that. But she was already bound by notes and contracts she had signed to pay the debt for which she gave the new notes and the mortgage. Receivership for her friend or judgments against both of them was the alternative, if she failed to give the security. If she believed the statement of the agents that Bard was good, and if sold out then would have a surplus of $5,000 above his debts, why did she not permit the receivership or the judgments, and thus relieve herself of the entire liability? The evidence in this case is too conclusive to leave a doubt that it was not because of the statements of the agents about the financial situation of Bard, but because of her friendship for Bard and of his request for her help, that she signed the notes and the mortgage. Moreover, neither she nor any person with ordinary sagacity and diligence in her circumstances and with her knowledge of Bard’s repeated failures, his increased indebtedness, and his inability to pay, could have failed to be aware of his precarious financial situation. For these reasons, and also because the representations of March 5, 1912, and P'ebruary 14, 1913, were not made by the agents for the purpose of inducing the making of the note of October 27, 1914, and it was not the natural and probable effect of those representations to induce the making of that note, and those representations were so remote in time and under such different circumstances that it is preposterous to believe that they induced the making thereof, or of the guaranty contract, or agency contract of June 5, 1914, these representations are here laid aside.
The note in suit was not given for any part of the indebtedness for whieh the notes and contracts of 1913 and prior years were made. It. was given for the amount due at its date, October 27, 1914, under the agency contract and guaranty contract oí June 5, 1914. There was no representation made at the time the note was given or after June 5, 1914, and all the representation that was made on that day was that of Boltz, the plaintiff’s agent, in the words: “Don’t talk foolish; Bard is good for it; why not sign? We don’t want any fuss about it” At that time Bard had been able, since the mortgage was given in February, 1913, to pay all the liabilities incurred that year and one of the six notes for $2,000, which had been given on February 14, 1913, for the indebtedness of prior years. It is too great a stretch of faith or of imagination to believe that Mrs. P'ricke was so ignorant of Bard’s financial situation and so influenced by this statement of Boltz that it either caused, or assisted to cause, her to sign these contracts or the note she made more than four months later, and the conclusion is irresistible that upon the evidence in this case the court below, in the exercise of a sound judicial discretion, could not have sustained a verdict in her favor.
The judgment below must therefore be affirmed; and it is so ordered.