April 19, 1940.
In the petition for rehearing in this cause, the respondents contend that the Court erred in failing to follow Rule No. 27, to the effect that an appeal from the refusal to direct a verdict will not be sustained when under all the circumstances a nonsuit would have been the appropriate remedy.
We held in the opinion filed that there was no evidence to support the allegations as to the rental agreement, and accordingly concluded that the motion for a directed verdict should have been granted.
The respondents now say that if there was no evidence to support the rental agreement, then the defendant's motion for a nonsuit should have been granted, and that under such circumstances a nonsuit would have been the appropriate remedy.
However, in our opinion it would not have been proper for the Circuit Court under the evidence to have granted a nonsuit. When the Circuit Court overruled defendant's motion for a nonsuit, it announced, "There is a declaration by Spence, I am getting this building for the Hardaway Contracting Company. Then we find the Hardaway Contracting Company on the premises, occupying a part of it as a field office, and having their tractors in there, and men working on the tractors, and Hardaway paying these men. That is certainly some evidence."
When the witness, C.B. Burch, was recalled by the plaintiff he testified that he heard Spence tell Moore over *Page 308 the telephone that he was renting the building for Hardaway Contracting Company; and there was other testimony in the record offered by the plaintiff from which an inference of agency might have been drawn, or as to which the inferences were in doubt. At that stage of the trial the Court was correct in overruling the motion for a nonsuit.
The respondents also contend that when it appears that a plaintiff might be able to supply additional evidence to support the cause of action, a verdict will not be directed, but a new trial granted. It is said that if a retrial be ordered, the plaintiffs might be able to prove that the rental agreement was actually made between the plaintiffs and the Hardaway Company. However, this case was commenced on June 21, 1937, and was not reached for trial until July, 1939. The plaintiffs had a period of more than two years within which to gather evidence. A time comes when there should be an end to litigation, especially where, as in this case, there is nothing in the record to suggest that any additional testimony on the point is available.
The respondents raised the point in their brief, and now in this petition, that the appellant did not in formulating its exceptions employ the proper phraseology. That instead of saying that there was no evidence to support the cause of action, it used the phrase "no legally sufficient evidence" to establish any rental agreement between the plaintiffs and the defendant. This objection was not raised in the Court below at the time the motion for a nonsuit and directed verdict was made in substantially the same words, and it seems to us that it verges on the hypercritical to stress it on appeal.
In its exceptions to this Court these words are used in raising the issue that the Court erred in failing to direct a verdict: That there was no "legally sufficient evidence" to establish agency or to establish the rental agreement. While this language is not technically correct the intended meaning of the appellant is unmistakably imported into the words it used. We are not disposed to dismiss the appeal *Page 309 or refuse to consider the exceptions on such debatable ground.
It therefore follows that the petition must be dismissed. Petition denied.
MR. CHIEF JUSTICE BONHAM, MESSRS. JUSTICES CARTER, BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.