(dissenting). I am not able to agree with the majority of the court in this case. In the first place the notes were procured by fraud and misrepresentation. This fact cast upon the plaintiff the burden of proving that it is a good-faith holder of the notes. Upon this question the evidence is so evenly balanced that a verdict or finding either way could not be said to be against the preponderance of the evidence, and could not be set aside for insufficiency of the evidence. But the fact that there is evidence sufficient to support a verdict or finding either way is sufficient to take the case to the jury and it was reversible error for the court to take the case from, the jury.
*590At the close of the evidence both parties moved for a directed verdict. This authorized, though I do not think it compelled, the trial court to take the case from the jury and make findings and conclusions as in a court case. Defendant, in making his motion for a directed verdict, reserved the right to object to the taking of the case from the jury unless a verdict was directed for him.
After the jury had been discharged defendant submitted, and requested, findings and conclusions in his favor. This request was denied and findings, conclusions, and judgment were entered for plaintiff. On appeal defendant is urging an exception to the dismissal of the jury; but the majority of the court take the position that, by making a request for findings and conclusions, defendant waived his right to object to the action of the trial court in taking the case from the jury. I think the majority opinion is clearly wrong. The case had been taken from the jury and the jury dismissed before defendant submitted his proposed findings and conclusions. The court had jurisdiction of both parties and the subject-matter. The court in no manner altered its course because of the request for finding's, nor 'were the rights of plaintiff in any way prejudiced. The case having been taken from the jury, it became hot only the right of defendant’s counsel, but his duty to his client, to make every reasonable effort to secure a decision in his favor. He did not know, merely because the case had been taken from, the jury, that the court would decide the case against him, and it ought not to be held that, in order to preserve a right he already possessed, he must stand idly by and make no effort until after judgment had been entered against him. No such rule is invoked by the respondent, and, so far as I can find, no other court ever made such a rule, and certainly no party should be held to have lost a substantial right because of such technicality.
The trial court erred to appellant’s prejudice in taking the case from the jury, and the judgment ought to be reversed on this ground alone.