I concur but I think we should squarely decide the question of whether motions for directed verdicts by all adverse parties without request for instructions is a common waiver of a jury and tantamount to an agreement to submit the case to the court. The question was left open in Christensen v. Utah Rapid TransitCo., 83 Utah 231, 27 P.2d 468. Again in Wood v. Kinter,86 Utah 279, 43 P.2d 192, it was said *Page 96 the rule was not applicable when there was a request for instruction accompanying the motion. There is decided conflict in authority. The majority of the states which have had the question before them have followed the federal rule, which is that motions by all adverse parties for a directed verdict withdraw the case from the jury. We need go no further than the three annotations, American Law Reports, to wit: 18 A.L.R. 1433; 69 A.L.R. 633; 108 A.L.R. 1315, in order to get a complete picture of the state of the law in this country and the reasons given by the decisions in favor of the majority and minority holdings. I favor the minority holding and thus concur in the holding of the court in this case that the factual questions were properly submitted to the jury. I cannot see that both sides waive a jury where plaintiff says "there is no evidence to support my adversary's theory, the evidence is all my way," whilst the adversary says "there is no evidence to support the plaintiff — it shows in law that the plaintiff has no case." The two similar motions based on completely opposite interpretations of the evidence would seem to present to the court definitely a question of whether one or the other was right and if he could not conclude that either was, that very conclusion would involve the idea of a factual question for the jury. I cannot subscribe to the soundness of the reason given in Sneider v. Big Horn Mill. Co., 1921, 28 Wyo. 40,200 P. 1011, and similarly reasoned cases that dual motions show no material disagreement as to the facts of the case which will affect the application of the law. There may be cases where both sides agree as to the facts but each differs as to that alleged inevitable conclusion which may be drawn from them. But more often the difference is as to the matter of the presence of evidence to support the adversary's position. Surely it cannot be said that the parties have in effect stipulated as to the facts or inferences to be drawn therefrom when each says that there is ample evidence to support his position and no evidence to support his adversary's position. The sounder reason is that both sides have in effect consented *Page 97 to withdraw the case from the jury, but on analysis this reasoning does not stand up because it is contrary to the fact. The fact is that each says it should not go to the jury because the other party has not made a case or a defense under the evidence. The readiness with which the courts following the majority rule seize on some slight provocation to make an exception to the rule on the theory that there is a waiver of the rule — a waiver of a waiver — demonstrates the instability of the rule itself. It were better to adopt a rule which is more in accord with reality than with a fiction. The rule should be that it is for the trial court to rule on each motion for a directed verdict separately and if neither is well taken to put the case to the jury, unless the court concludes that there is no substantial disagreement as to the evidence nor as to any of the inferences or deductions which may reasonably be drawn therefrom in which case in any event there remains but a question of law for the court.
I shall briefly give my views on the contention of defendants that there was no evidence to support certain of the jury's answers to the interrogatories.
There appears to be some evidence that the note for $500 (of which the note for $529 was a renewal) was for the purpose of making a payment on the $1,300 note. Croft testified that it was to bring the "other note up to date so that it could be used" which use, it appears, was as collateral with the bank. Mr. Smoot testified that "I take it, that the one here, taken up as a renewal, was to apply on the other note." He appears to be testifying as to the $500 note which represented payment as indorsed on the $1,300 note, and not the $529 note which was a renewal of the former. In consequence I think there is some evidence that the $500 note was to apply as payment on the $1,300 note and its application thus tolled the statute.
The note for $529, the basis for the second cause of action being a renewal of the $500 note which itself was found not to be for accommodation must, therefore, support a judgment for plaintiff. *Page 98
As to the third cause of action: While it appears that the note for $3931.50 was designed for the signature of W.W. Seegmiller as well as the defendants, there is evidence that these defendants, knowing that they were bound on the $2,835 note which the $3,931 note was intended to renew, meant to bind themselves absolutely. Hodges testified that he promised "to try" to get Seegmiller's name on the $3,931 note; also that Croft was "peeved" when he found that that had not been done. The fact that Croft was peeved instead of demanding the note back on the ground that it was not his obligation because a condition had not been met is evidence of the fact that he was disappointed because Seegmiller had not joined them as an obligor, rather than that he was "peeved" because the paper had not been turned into an obligation.
It would seem that if Seegmiller's name to the note was a condition of its validity he would have demanded its return. Hodges retained the note for $2,835 for which the note for $3,931 was a renewal. But this may have been because Seegmiller was still responsible on that note. Other arguments are made by appellants to show the unreasonableness of the jury's verdict in regard to the interrogatory as to whether the $3,931 was given absolutely or conditionally, but they are for the most part based on deductions predicated on the theory that Hodges had a rather intricate knowledge of the law and he must, therefore have necessarily concluded that he was holding the $2,835 because he knew that the $3,931 note was delivered conditionally only. Laymen usually do what they think best for their own interests without knowledge of refined legal propositions. The jury may readily have concluded that Hodges held the old note because he thought that Seegmiller was still bound by it without thought or knowledge of the asserted legal proposition that a release of one obligor releases the other.
The jury finding as it did respecting the first count of the third cause of action, the second count drops out of the picture. It is probably well for the plaintiff that it did so, *Page 99 for the evidence that Smoot paid $2 to Hodges' son on account of a $2,835 note appears too far-fetched to inspire credence, especially in view of the reasonable explanation given by Smoot as to the purposes for which the money was paid to the son.