Docket No. 593

Decided: Wednesday, October 26th, 1892

Opinion: 5 Wash. 125 (1892)

Court: Anders1 Court (1889-1892)

Anders

Dunbar

Hoyt

Scott

Stiles

BLUE v. McCABE, 5 Wash. 125; 31 P. 431 (1892).

No. 593.

SUPREME COURT OF WASHINGTON

October 26, 1892, Decided Appeal from Superior Court, Spokane County.

Court: Judgment affirmed.

Counsel: Jones, Belt & Quinn, for appellant. J. T. Hamilton, and W. H. Plummer, for respondent.

Judge(s) STILES, J. ANDERS, C. J., and HOYT, SCOTT and DUNBAR, JJ., concur.

Opinion By: STILES The opinion of the court was delivered by STILES, J.--In passing upon appellant's motion for a non-suit, the judge who tried the cause remarked that the testimony showed that the transfer of the note sued on was made by the officers of the Kettle Falls Improvement Company. Appellant complains of this as a violation of § 16, art. 4 of the constitution, prohibiting judges from commenting upon the facts of a case. We cannot assent to the proposition. When counsel make a motion for a non-suit they know that it is a challenge to the court to determine the sufficiency of the facts adduced by the plaintiff, and that in deciding the motion, the judge may find it necessary to allude to the evidence. It would be going entirely too far to hold that the denial of the motion must be limited to the formal words, since it is in the highest degree proper that the judge should give his reasons for his action. In every such a case counsel who fear the effect of what the judge may say upon the jury, should secure the absence of the jury from the court room during the argument of their motion.

The motion for non-suit was made on the ground that the plaintiff had not shown that the president and secretary of the Kettle Falls Improvement Company had authority to endorse and transfer the note. In denying the motion the court said it would be assumed that the officers named acted within the scope of their authority. It might be questioned whether this ruling would stand the test of rigid scrutiny; but there was then in the case testimony tending to show that the maker of the note, appellant here, who was an officer of the company, himself suggested and requested that Blue should cash the note in order that the company might prosecute some of its plans, and it was in pursuance of appellant's request that the assumed transfer was made, and the money paid. Therefore appellant was in no position to take advantage of a technical want of authority in the president and secretary.

A charge that the corporation must have had authority from the company's board of directors to transfer the note would have been proper enough had it been accompanied by other charges sufficient to inform the jury that such authority might be conferred in many ways; as, for instance, by the general consent of every person interested in the corporation, given at meetings where the maker of the note as a stockholder and officer voted for the transfer. A corporation which numbers but half a dozen individuals as stockholders, and which transacts its business after the town meeting plan, as this one seems to have done, leaves very little room for technical objection by those who participate in the meetings.

The instructions asked upon the theory of fraudulent representations made to procure the execution of the note were properly refused. The complaint was insufficient to sustain a defense of this kind, and the evidence entirely failed to produce any fact from which fraud could be argued. Besides which appellant consented and voted for the very thing of which he most complains.

Appellant objected to the entry of a judgment against him upon the verdict of the jury. The form of the verdict was as follows: "We, the jury, in the case of Louis Blue, plaintiff, v.

The Kettle Falls Improvement Company, defendant, find for the plaintiff, and assess his damages at the sum of eight hundred dollars." The title of a cause is used in a verdict merely to identify it with the cause, and it is not necessary that all of the parties be named in order that it may be a good verdict against each one. If it can be fairly gathered what the intention of the jury was, it will be given effect accordingly. There were two defendants named in the complaint, the Kettle Falls Improvement Company and McCabe. The corporation, as far as we know from the record, did not appear or answer, and the case tried was not against it, but against McCabe alone. The jury could not, therefore, have meant to find against the corporation as they were not trying any matter in which it was interested. They simply found for the plaintiff, mentioning no defendant, but intending the only defendant they had before them. The court below construed the verdict in this way, and entered judgment against McCabe.

Finding no error, the judgment is affirmed.

ANDERS, C. J., and HOYT, SCOTT and DUNBAR, JJ., concur.