The appeal herein is based upon an attack upon a judgment of the District Court of the First Judicial District of the State of Utah. Judgment was entered for the plaintiff and respondent, Hodges. I.A. Smoot and C.M. Croft, defendants and appellants, appeal. The action was filed on the 17th day of April, 1939. Further and amended pleadings form the issues for trial. The action consists of three causes of action. The first cause of action alleged the execution of a promissory note executed and delivered by defendants on the 17th day of September, 1929, upon which certain payments had been made. The answer denies any *Page 92 payments were made and interposes the statute of limitations.
A jury had been selected and heard all the evidence of the case. The court was of the opinion there were certain facts that, if determined by the jury, would leave the question to be determined a matter of law. Special interrogatories were framed and submitted with general instructions as to weight of evidence, the jury being the sole judge of the fact and the credibility of witnesses. The court adopted the facts found by the jury, made findings and entered judgment.
The court found the note had not been paid, except the following installments: $5 on October 19, 1935; $10 by a note signed by defendant Croft; $50 by defendant Croft in 1935; on December 30, 1936, defendants paid on said note by delivering coal, the sum of $11.05, and on December 30, 1936, the said defendants as a payment on said note executed and delivered to plaintiff their promissory note in the sum of $500 which was renewed October 27, 1937, in the sum of $529.20, and there is now due and owing on the note $1,300 with interest, as specified in the findings and judgment.
The second cause of action is based upon the note for $529.20, bearing date of the 17th day of September, 1937, signed by defendants. The answer of defendants asserts that this note was given "as an accommodation to the plaintiff who was the principal obligor." There is nothing in the note nor any endorsement thereon to show that such was the case. This question was submitted to the jury. Their answer was "No." The court found this note was a renewal note given as a payment of interest on the $1,300 note referred to in the first cause of action, and that the $500 note of which the $529.20 note was a renewal was credited as a part payment on the $1,300 note.
The third cause of action, first count, alleges that on or about the 3rd day of March, 1935, the defendants executed and delivered the promissory note therein set forth in the *Page 93 sum of $3,931.30 and payable in instalments with interest; and that it has not been paid.
The second count of the third cause of action alleges that the defendants with W.W. Seegmiller executed and delivered on the 29th day of September, 1929, the note therein set out for $2,835 which note has not been paid, except for the payments of $66.65 on December 3, 1929; $33.65 on January 8, 1930; and $2 on November 30, 1934 by I.A. Smoot, and further alleges that the note set out in the first count of this third cause of action was a renewal note of the note set out in this cause of action, and that they represent an identical obligation described in the first count of the third cause of action and does not claim the right to recover upon both.
As to the first count of the third cause of action, defendant's answer asserts the note is not enforceable for failure of consideration, in this, that said note was signed and delivered on condition that plaintiff would secure also the signature of W.W. Seegmiller on said note as a co-maker, which plaintiff failed to do.
As to the second count of the third cause, defendants deny the allegations as to the renewal note or any knowledge or information as to payments made by W.W. Seegmiller, deny any other payment and allege that the third cause of action is barred by the provisions of the statute of limitations, Section 104-2-22, R.S.U. 1933, and that there was no payment or acknowledgment within the meaning of the statute. One of the controversial points as to this cause arises over the evidence about the payment of $2 by the defendant Smoot, which was applied upon this note.
These controverted matters were covered by special interrogatories. The jury was asked to find whether the defendants signed and delivered the $3,931.50 note to plaintiff upon the condition that said note was not to become effective until and unless signed by W.W. Seegmiller as a joint maker. To this inquiry the jury answered in the negative and the court adopted that as the fact. *Page 94
The several points above presented on this appeal it is claimed are not supported by any substantial evidence. We have carefully examined the record and are unable to agree with appellants. We have been unable to find a single point argued that there is not either a substantial unanimity 1, 2 of the evidence in favor of plaintiff or a direct conflict. Had the matter been submitted to us as a trial tribunal, we may or may not have arrived at the same result; but the result arrived at would have and does depend upon whom the jury or judge and jury believed. None of the witnesses showed more marked bias than ordinary commercial interest would be expected to show. That there was a conflict in the evidence or that one person would have been more inclined to believe one than another does not justify a conclusion that the choice of belief was unreasonable. The most that can be said is that in certain instances there was sharp conflicts in the testimony. Jensen etal. v. Howell et al., 75 Utah 64, 282 P. 1034; Jackson v. James,97 Utah 41, 89 P.2d 235.
It is argued the court should have taken the third cause from the jury when both sides had moved for a directed verdict on that cause of action.
The record discloses that in chambers the following occurred: The plaintiff moved the court to direct the jury to find a verdict in favor of plaintiff on the first cause of action, on the second cause of action and on the note set out in the first count of the third cause of action; but if the court for any reason should not see fit to do so, then to direct a verdict in favor of plaintiff and against the defendants on the theory as prayed for in the second count of the third cause of action. Counsel for defendants then moved that the court direct the jury to return a verdict of no cause of action as to the third cause of action.
The court then indicated that when it reconvened it would deny both motions and submit certain special questions to the jury. *Page 95
When the court reconvened its expressed intention was proceeded with by first denying the motions.
Upon motion of plaintiff over objection of defendants, the case was reopened. Two witnesses were recalled and testified upon direct and cross examination. The court then read prepared instructions to the jury including the questions relating to what the court conceived to be the basic facts. Both sides submitted requests for instructions. At the close of the reading of the interrogatories and instructions, defendants entered exceptions to the refusal of the court to give requested instructions.
Whether the requested instructions were filed or presented to the court before or after the motions relating to a directed verdict does not clearly appear.
Had the question of taking the whole matter from the jury been a clean cut situation, we might be inclined to one side or the other. Even when there is a motion for a directed verdict by both sides, we find conflicting authorities as to whether the matter should be taken from the jury. Christensen 3 v. Utah Rapid Transit Co., 83 Utah 231, 27 P.2d 468. Neither party is in a position to complain as to the procedure followed by the court. There was apparently, if not complete acquiescence of what the court did as a matter of procedure.
There was no error in submitting the cause to the jury.
The judgment is affirmed. Costs to respondent.
PRATT, J., concurs.