
    [No. 12552.
    Department Two.
    November 24, 1915.]
    Washington Trust Company, Respondent, v. Thomas Keyes, Appellant.
    
    Bills and Notes—Holder in Due Course—Failure op Consideration. One taking a note with full knowledge that the consideration ■ bad failed, is not a bolder in due course, and is subject to tbe defense of failure of consideration.
    Trial—Province op Court and Jury—Judgment Non Obstante. Tbe trial court cannot enter judgment non obstante veredicto, where tbe evidence was conflicting, and sufficient, if believed, to sustain tbe verdict; but can, at most, grant a new trial.
    Appeal from a judgment of the superior court for Spokane county, Kennan, J., entered June 22, 1914, in favor of the plaintiff, notwithstanding the verdict of a jury rendered in favor of the defendant, in an action on a promissory note.
    Reversed.
    
      Voorhees & Canfield and J. M. McCroshey, for appellant.
    
      Damson, Williams & Danson (George D. Lantz, of counsel), for respondent.
    
      
       Reported in 152 Pac. 1029.
    
   Per Curiam.

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 failure 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.  