41 A.2d 166 | D.C. | 1945
Defendant, a liquor dealer, was sued in detinue for a case of whiskey or its value. Plaintiff claimed that on the representation of one Davidson, defendant’s manager, that liquor was becoming scarce she agreed to buy a case, paying for it in installments and leaving it at defendant’s store for delivery when her husband returned from military duty. Davidson, called as a witness for plaintiff, testified that he was a brother-in-law of defendant and had been (but was no longer) manager of the store; that he sold plaintiff the case of whiskey for future delivery, received payment from her in cash and placed the money in defendant’s cash register; and that in this transaction, as in all others in the store, no sales slip was used or issued. He further testified that he placed the case of whiskey in back of the store and sold bottles from it at various times, expecting to replace them from later shipments. There was in evidence the receipt he issued to plaintiff covering the transaction and reciting that the liquor was “to be held.” The receipt was for $48 which he said he received at the time of the sale, and covered one case of Old Charter Whiskey. Witness said he did not know plaintiff socially and had never visited her home.
Plaintiff testified that she had not paid for the whiskey in one sum but in install
The record recites that the trial judge thereupon sua sponte (no motion having been made by defendant) ordered a finding for defendant. The record does not reveal that plaintiff had rested her case or whether opportunity for argument was afforded her counsel. In a memorandum denying a motion for new trial the trial judge stated that he had "found these witnesses wholly unworthy of belief, and the transaction, suspicious on its face from the outset, to be susceptible to the charge of fraud if not fraudulent in fact,” and that he felt “neither witness was capable of support.”
We must hold the ruling erroneous. It was precipitate because it attempted to weigh the evidence before it was proper to do so. Though the trial judge acted on his own motion the effect is the same as if defendant had moved for a finding on plaintiff’s evidence. Such motion could not properly have been made until plaintiff had completed her case and rested.
We think plaintiff made a prima facie showing. The evidence in her behalf tended to prove a purchase from defendant’s manager, payment of an agreed purchase price and failure of defendant to deliver the subject matter of the sale. These elements taken as true (as they must be for present purposes) substantially established her claim, and it was error to reject it merely because of conflicts, contradictions or suspicious circumstances.
No doubt there are occasional cases where a plaintiff’s own evidence may show that defendant must prevail, such as a claim upon a gambling debt, or one which is void on grounds of public policy, or one clearly barred by limitations, or one turn
Reversed with instructions to award a new trial.
Crown Point Mining Co. v. Buck, 8 Cir., 97 F. 462; Eire Ass’n of Philadelphia v. Oneida County Macaroni Co., 2 Cir., 294 F. 633; Preston v. Peck, 271 Mass. 159, 171 N.E. 54; Crean v. McMahon, 106 Md. 507, 68 A. 265, 14 L.R.A., N.S., 798.
Yellow Cab Co. v. Griffith, D.C.Mun.App., 40 A.2d 340; Birchall v. Capital Transit Co., D.C.Mun.App., 34 A.2d 624; Viner v. Friedman, D.C.Mun.App., 33 A.2d 631; Lohse v. Coffey, D.C.Mun.App., 82 A.2d 258.
Spahn v. Mandell, 111 N.J.L. 144, 167 A. 663; Lorino v. Crawford Packing Co., Tex.Civ.App., 169 S.W.2d 235; Windus v. Bodecker, 132 Kan. 857, 297 P. 702; Jones v. Toledo, etc., R. Co., Mo.App., 202 S.W. 433.
Central, etc., Ass’n v. United States F. & G. Co., 334 Mo. 580, 66 S.W.2d 550.
Euclid Arcade Bldg. Co. v. H. A. Stahl Co., 99 Ohio St. 47, 121 N.E. 820; Berwald Stewart Co. v. Creston Co., Ohio App., 53 N.E.2d 205; Tiger v. Ward, 60 Okl. 36, 158 P. 941; Culp v. Trent, 99 Okl. 112, 226 P. 348; Nolan v. Mathis, 134 Okl. 86, 272 P. 865; Universal Life Ins. Co. v. Berry, 177 Okl. 92, 57 P.2d 879.