This is an action to recover upon a promissory note given by the appellant Keyes to the L. D. McCarthy Auto Company, and by it indorsed to the respondent. The case was tried to a jury, which rendered a verdict for the appellant. The respondent thereupon moved for judgment non obstante veredicto, or in the alternative for a new trial. The motion for judgment non obstante haying been granted, Keyes has appealed.
The defenses included, among others, that the respondent took the note with full knowledge that the consideration therefor had failed. If this defense was established, the respondent was not a holder in due course, and the defense of *288failure of consideration would be available in the action thereon by the bank. In Walling v. Elbert, 87 Wash. 489, 151 Pac. 1081, and in other recent cases, we held that a trial court cannot grant a motion for judgment notwithstanding the verdict where there is a conflict in the evidence, as to do so would invade the province of the jury as triers of the facts. The record in this case discloses that there was evidence which, if believed, would establish that the bank was not a holder in good faith without knowledge of any defect in the note, and by granting the motion for judgment non obstante, the trial court substituted his judgment of the weight of this evidence for that of the jury. If he believed that the evidence was insufficient to sustain the verdict, he could have granted a new trial, but was without power to grant judgment non obstante. Fobes Supply Co. v. Kendrick, ante p. 284, 152 Pac. 1028.
The judgment is therefore reversed, with directions to the trial court to overrule the motion for judgment notwithstanding the verdict and to pass upon the motion for a new trial.