The only question submitted on this appeal is the character of the following judgment, whether it be one of nonsuit, or upon the merits and a bar to a subsequent action:
“This cause came regularly on for trial before the court and a jury on the 3d day of June, A. D. 1907, the plaintiff appearing in person and by counsel and the defendants ap*271pearing by their counsel. The plaintiff introduced his evidence and rested, whereupon the defendants challenged the legal sufficiency of the evidence and moved the court to decide, as a matter of law, that the defendants were and are entitled to a verdict in their favor, and that the jury be discharged from further consideration of the case, and that judgment be entered in favor of the defendants, that plaintiff take nothing herein upon the ground that the plaintiff failed to prove a sufficient cause for the jury.
“The court having considered said motion and being fully advised in the premises does hereby in all things grant said motion, and it is hereby ordered, and adjudged that the plaintiff take nothing herein, and that the defendants recover their costs and disbursements to be taxed by the clerk.
“Done in open court this 6th day of June, A. D. 1907.
“Wm. A. Huneke, Judge.”
The motion upon which the judgment was entered does not appear of record, except as it is contained in the judgment itself. As so contained, we are of the opinion that it was not a motion for a nonsuit, as contended for by appellant, but rather a challenge to the sufficiency of the evidence, and required the court to decide, as a matter of law, what verdict should be found. Appellant contends that the judgment follows Rem. & Bal. Code, § 408, reading:
“An action may be dismissed, or a judgment of nonsuit entered, in the following cases:
“8. By the court upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient cause for the jury.”
The motion, however, as embodied in the judgment, went much farther than to ask the court to rule that plaintiff had failed to prove a sufficient cause for the jury. It not only called the insufficiency of the evidence to the court’s attention, but “moved the court to decide as a matter of law that the defendants were and are entitled to a verdict in their favor, and that the jury be discharged from further consideration of the case and that judgment be entered in favor of defendants.” The court, under this motion, was called upon to rule *272not only that “plaintiff had failed to prove a sufficient cause for the jury,” as provided for in § 408, supra, and is in effect a negative finding, but the motion called upon the court to go farther and hold that the evidence affirmatively showed that defendants were entitled to judgment and that the verdict should be in their favor. The motion was manifestly made under Rem. & Bal. Code, § 340, providing that,
“In all cases tried in the superior court with a jury in which the legal sufficiency of the evidence shall be challenged, and the court shall decide as a matter of law what verdict should be found, the court shall thereupon discharge the jury from further consideration of the case, and direct judgment to be entered in accordance with its decision.”
We have, without exception, held that judgments granted under this section are judgments upon the merits. Spokane & Idaho Lumber Co. v. Loy, 21 Wash. 501, 58 Pac. 672, 60 Pac. 1119; Bartelt v. Seehorn, 25 Wash. 261, 65 Pac. 185; Weir v. Seattle Elec. Co., 41 Wash. 657, 84 Pac. 597; Sweeney v. Waterhouse & Co., 43 Wash. 613, 86 Pac. 946; Morris v. Warwick, 42 Wash. 480, 85 Pac. 42; McGuire v. Bryant Lumber & Shingle Mill Co., 53 Wash. 425, 102 Pac. 237.
As stated in Morris v. Warwick, supra, this section, in referring to the sufficiency of the evidence, characterizes it as “the legal sufficiency,” while in § 408, reference is made to the probative sufficiency of the evidence. If the evidence does not prove the plaintiff’s case, it is a case for a nonsuit, but if the case as alleged is established but its legal sufficiency is denied by the court, the judgment rendered upon such a denial is under § 340 and is a bar.
■ There were two affirmative defenses pleaded, and it may have been that, in the judgment of the court, one or both of these defenses were established by plaintiff’s evidence, as in Bartelt v. Seehorn, supra. Such a ruling would in no sense be one of nonsuit, but would be a finding upon the merits.
Appellant cites Bartelt v. Seehorn, supra, in saying, “A *273judgment of nonsuit or of dismissal entered by the trial court on motion of the defendants when the plaintiff fails to prove a sufficient cause for the jury is not a bar.” Such undoubtedly is the rule, but there is a wide distinction between a dismissal granted because of failure of proof, and a dismissal and judgment granted because the court holds defendant entitled to a judgment on the merits upon the plaintiff’s evidence. The judgment before us is of the latter kind, from its own recitals. Appellant also cites and relies upon Carroll v. Grande Ronde Elec. Co., 49 Ore. 477, 90 Pac. 903, but the statute construed in that case is similar to Rem. & Bal. Code, § 408, and any dismissal thereunder could not be other than one of nonsuit.
We are of the opinion that the judgment is one upon the merits, and is a bar to any subsequent action upon the same cause. The judgment of the lower court is therefore affirmed.
Fullerton, J., concurs.