Wells v. First Nat. Bank

Mr. Justice Bean delivered the opinion of the court. Upon the trial of the cause both Mary T. Wells and Flora Wells, plaintiffs herein, testified that neither of them ever directly or indirectly withdrew the balance of $2,200 admitted by defendant bank to have been upon deposit therein to their account, nor authorized Sheridan, president of the bank, to loan the same, although one of them wrote him in regard to a loan, and her letter shows she made an inquiry concerning such an opportunity. It appears that plaintiffs resided a little distance from the bank, and had never spoken with Sheridan but once or twice. The evidence, if correct, and it is undisputed, is a complete refutation of every claim made by the bank. 1, 2. The burden was upon the defendant in the first instance to show the payment to plaintiffs of the amount due or some lawful disposition of the funds deposited by them. This it wholly failed to do, as it offered no evidence. The trial court therefore very properly directed the jury to return a verdict for [335] plaintiffs for the amount claimed: Carney v. Duniway, 35 Or. 131 (57 Pac. 192, 58 Pac. 105). 3, 4. The motion for a nonsuit made by the defendant when plaintiffs rested their case raised the same question as plaintiffs’ motion for a directed verdict. It was not error for the trial court to refuse the same. Taken together the uncontradicted evidence, the statements in the pleadings conceded by plaintiffs cannot be construed as constituting a defense to plaintiffs’ admitted cause of action. The motion for a nonsuit having been overruled, the defendant having refused to introduce testimony, and the plaintiffs having moved for a directed verdict, both sides waived a trial by jury, and the case stood for decision by the court: Patty v. Salem Flouring Mills Co., 53 Or. 350 (96 Pac. 1106, 98 Pac. 521, 100 Pac. 298); Merrill v. Missouri Bridge & Iron Co., 69 Or. 585 (140 Pac. 439). For a further exemplification of the situation and the law pertaining thereto, see the companion case of De War v. First Nat. Bank ante, p. 260 (156 Pac. 1038). Finding no error in the record, the judgment of the lower court is affirmed. Affirmed. Mr. Chief Justice Moore and Mr. Justice Eakin absent.