Yeomans v. Laster

RICE, C. J. This is an action by appellant for damages for alleged breach of an executory contract for the sale of certain hogs. At the trial, appellant introduced the contract in evidence, together with an assignment thereof to the Idaho Provision & Packing Company. The verdict and judgment were for defendant. There is nothing in the record which tends to prove that after the assignment appellant had any interest in the contract. At the close of appellant’s evidence, respondent moved for a nonsuit upon the ground, among others, that appellant was not a real party in interest. The motion for nonsuit should have been granted. Respond [272] ent, however, introduced testimony in his own behalf and thus waived his motion for a nonsuit. (Chamberlain v. Woodin, 2 Ida. 642, 23 Pac. 177; Shields v. Johnson, 12 Ida. 329, 85 Pac. 972; Barrow v. Lewis Lumb. Co., 14 Ida. 698, 95 Pac. 682; Tonkin-Clark Realty Co. v. Hedges, 24 Ida. 304, 133 Pac. 669.) The evidence having shown that appellant retained no interest in the cause of action set forth in his complaint, he sustained no injury by the verdict and judgment in favor of respondent. This is not a ease of defect or misjoinder of parties plaintiff which is waived by failure to demur or answer. (Buckingham v. Buckingham, 36 Ohio St. 68.) It is a ease where the proof showed no cause of action in appellant. The admission by respondent in his answer that he executed the contract set out in the complaint is not an admission that appellant retained an interest in the contract at the time of the commencement of the action. (See Austin v. Brown Bros. Co., 30 Ida. 167, 164 Pac. 95.) The appellant has shown no cause for the reversal of the judgment, and it is accordingly affirmed with costs to respondent. McCarthy, Dunn and Lee, JJ., concur. Budge, J., did not sit at the hearing or take any part in the opinion.