
    Wehnes v. Schliewe.
    
      (Decided March 20, 1934.)
    
      Mr. W. E. Pardee and Mr. B. K. Mamdng, for plaintiff in error.
    
      Mr. F. A. Bees, for defendant in error.
   Washburn, P. J.

Gustave Welmes, being the owner of eleven promissory notes payable to Mm and signed by A. W. Gruber and Bertba A. Gruber, dated in 1916 and payable at different times witMn a period of five years, sold the same to Albert H. Schliewe, signed his name as indorser on the backs of said notes, and delivered the same to said purchaser. No place of payment was specified in said notes, and there was no waiver of presentment for payment or notice thereof on the notes.

One of the notes was paid* and nothing has ever been paid on any of the other notes except the interest for one year.

This action was brought by Schliewe to recover from Wehnes, as indorser upon said notes. The cause was submitted to a jury, and a verdict and judgment in favor of Schliewe found.

The real controversy between the parties is as to whether or not said notes were properly presented to A. W. Gruber and Bertha A. Gruber, and notice of nonpayment given to said Wehnes.

The record discloses that, at ,the close of the evidence on behalf of Schliewe, a motion was made on behalf of Wehnes for judgment on the pleadings, on the ground that the amended petition failed to state a cause of action. At the close of all the evidence, a like motion was made, and both motions were overruled and exceptions noted. At no time was there a motion to direct a verdict in favor of Wehnes.

A motion for a new trial, filed on behalf of Wehnes, claimed that there was error in the amount of the verdict, that said verdict was not sustained by sufficient evidence and was contrary to law, and that there was error in the court’s instructions to the jury, but there was no claim that the court erred in not withdrawing a juror and entering judgment in favor of Wehnes.

It should be stated that counsel for Wehnes in this court were in no way connected with the trial of the case in the Common Pleas Court.

In the petition in error filed in this court, it is claimed that the trial court erred in the admission and rejection of evidence, in its charge to the jury, and in overruling the motion fpr a new trial, and it is also claimed that “said judgment is contrary to law and against the weight of the evidence” and that there are “other errors on the face of the record prejudicial to the rights” of Wehnes; and the prayer of the petition in error is that the judgment of the trial court should “be reversed”, and that Wehnes “be restored to all things lost thereby.” There is no claim made in the petition in error that the trial court erred by not withdrawing a juror and entering judgment in favor of Wehnes.

Said notes were signed by two makers, and there is no claim that they were partners, and there is no claim in the petition that Wehnes waived presentment of said notes to such makers for payment and notice of dishonor, but there is some evidence in the record tending to prove an implied waiver. Although no application to amend, so as to make a claim of such waiver, was made, the court, nevertheless, charged on the subject of waiver of presentment for payment and notice of dishonor, and among other things said: “If one bound to pay refuses to do so that excuses a demand and further performance by the person entitled to receive.”

The jury was thus told that, if presentment for payment was made of Wehnes, the indorser, presentment for payment to the Grubers, the makers, was not necessary. This, of course, was error, and, under the circumstances presented by the record in this case, was clearly prejudicial.

The court also charged upon the subject of notice of dishonor as follows: “The law further provides that notice of dishonor is not required to be given to an endorser in either of the following cases: the one in so far as it applies to this is when the endorser is the person to whom the instrument is presented for payment.”

We can find no such a provision in the Negotiable Instruments Act. The provision of Section 8219, General Code, providing that notice need not be given to a drawer “when the drawer is the person to whom the instrument is presented for payment”, has no application whatever to the circumstances as presented by the record in this case.

The petition upon which the case was tried, specifically alleged that presentment for payment was made and refused, and that notice thereof was given to Wehnes orally.

The general rule is that, where performance only of a contract is alleged, it is not competent to prove a waiver of such performance. If waiver is relied upon, it must be pleaded. Eureka Fire & Marine Ins. Co. v. Baldwin, 62 Ohio St., 368, 57 N. E., 57; Globe Indemnity Co. v. Wassman, 120 Ohio St., 72, and authorities cited therein at page 87, 165 N. E., 579; Bates’ Pleading, Practice, Parties & Forms (4th Ed.), Section 975e4.

Schliewe gave evidence of presentment and of oral notice of dishonor, and also evidence tending to prove an implied waiver of presentment and notice, but no application was made in the trial of the case for leave to amend the petition by alleging waiver. However, the mere fact that the court charged on waiver without such amendment being made would probably not be prejudicial error if the charge had correctly stated the law on that subject.

Moreover, there were two makers upon said notes, and the court confined the charge entirely to one maker, who was designated and referred to by name, and, on the subject of presentment, the court never even indirectly referred to the other maker, notwithstanding the fact that the evidence as to presentment to the maker not mentioned in the charge was so slight that it is earnestly urged that it did not amount to even a scintilla.

The makers were husband and wife, but were not partners, and Section 8183, General Code, provides that: “When there are several persons, not partners, primarily liable, on the instrument, and no place of payment is specified, presentment must be made to them all.”

The court’s failure to charge that, in order to charge Wehnes as an indorser, it was incumbent upon Schliewe to present said notes for payment to all of the makers of said notes, was not a mere omission, but, under the circumstances shown by the record in this case, was a clear failure to charge upon a very important issue, and was clearly prejudicial.

As has been said,- one of the grounds contained in the motion for a new trial was that the verdict was not sustained by sufficient evidence, and we are unanimously of the opinion that the motion for a new trial should have been granted on that ground, and it was therefore error for the court to overrule the motion for a new trial.

For such error and the errors in the charge which have been pointed out, the judgment must be reversed.

It is urged on behalf of Wehnes that this court should render final judgment in favor of Wehnes.

In many cases the Supreme Court has declared the law to be substantially as follows: Where the facts have been agreed upon, or where there is no conflict in the evidence, the Court of Appeals may apply the ruling principles of law to the uncontroverted facts, and, if application of the ruling principles requires a reversal of the judgment, and a final judgment in favor of the plaintiff in error, that procedure will be approved.

It is claimed that there is no conflict in the evidence in this case on the question of the presentment for payment of said notes to Mrs. Gruber.

There is some evidence in the record on that subject, and, while we are unanimous in the conclusion that a finding that there was ■ such presentment is not sustained by sufficient evidence, there is a difference of opinion among the judges of the court as to the reasonable inferences that may be drawn by reasonable minds from such evidence as there is, and therefore we are unable to reach a conclusion that a final judgment should be entered by a majority of the court; at least, such entry should not be made in the absence of a motion during the trial of the case for a directed verdict in favor of Wehnes.

It must be borne in mind that we are not considering a chancery case, nor a case submitted upon an agreed statement of facts, nor a case where the controlling facts are conceded in the pleadings or in the proceedings at the trial, or by a combination of the two; but only a jury case in which there was a failure of proof or insufficient evidence as to a material fact.

Where, in a ease triable to a jury, a reviewing court finds that there was insufficient or no evidence introduced tending to prove a fact necessary to constitute a cause of action, but no motion was made in tbe trial court to direct a verdict for the defendant at tbe close of all of tbe evidence, tbe reviewing court may reverse tbe judgment because tbe evidence does not warrant a judgment against tbe defendant; but, as it cannot reverse tbe judgment on tbe ground that tbe trial court erred in not sustaining a motion for a directed verdict, it is the duty of the reviewing court to remand tbe cause instead of rendering final judgment.

Section 12272, General Code, relating to tbe judgment which a reviewing court should enter, is as follows: “When a judgment or final order is reversed, in whole or part, in tbe common pleas court, court of appeals or supreme court, tbe reviewing court shall render such judgment as tbe court below should have rendered, or remand tbe cause to that court for such judgment.”

In a case triable by a jury, where tbe application of tbe law depends upon facts, tbe plaintiff has an opportunity at tbe trial to introduce evidence to prove all tbe facts essential to bis right of recovery, and, if be fails to offer evidence as to any essential fact, tbe defendant, by a motion to direct a verdict at tbe close of all tbe evidence, may raise a question of law purely; that is, that tbe plaintiff having failed to offer such evidence, and such evidence not having been developed in tbe presentation of tbe defendant’s evidence, tbe defendant is entitled to a judgment in bis favor. If tbe defendant makes such a motion, and tbe same is overruled, tbe error of tbe trial court consists, not in tbe failure, but in tbe refusal, to render judgment in favor of the defendant; but, if such a motion is not made, it cannot be claimed, in tbe reviewing court, that it was tbe duty of tbe trial court to enter such judgment, and therefore such judgment is not one which tbe trial court “should have rendered”, within tbe meaning of Section 12272, General Code.

If no motion for such a judgment is made by tbe defendant, and the case is submitted to the jury, and a verdict is returned for the plaintiff, and a judgment is entered thereon, a reviewing court, upon finding that there is insufficient evidence to support such judgment, or that there was no evidence tending to establish a material allegation of the petition, and that therefore the motion for a new trial should have been granted, should, of course, reverse the judgment for error of the trial court in overruling such motion for a new trial, but is not justified in proceeding to enter final judgment in favor of the defendant, and thus deprive the plaintiff of his right to supply such necessary evidence upon a retrial of the case.

“1. When a higher court reverses the judgment of a lower court upon the ground that the verdict or judgment is not sustained by sufficient evidence, or is against the weight of the evidence, the cause must be remanded to the lower court for a new trial; * * # .” Minnear v. Holloway, 56 Ohio St., 148, 46 N. E., 636.

“2. Although a party against whom a verdict is returned and a judgment is rendered in the court of common pleas may have been entitled to an instruction to the jury to return a verdict in his favor, he is not, on that account, entitled to a final judgment in his favor in a reviewing court, unless upon the trial he has requested that such instruction be given.” Whitaker v. Michigan Mutual Life Ins. Co., 77 Ohio St., 518, 83 N. E., 899.

See, also, the cases of Cincinnati Traction Co. v. Durack, Admr., 78 Ohio St., 243, 85 N. E., 38, 14 Ann. Cas., 218, and City of Zanesville v. Stotts, 88 Ohio St., 557, 106 N. E., 1051.

In the case of Youngstown & Suburban Ry. Co. v. Faulk, 114 Ohio St., 572, 151 N. E., 747, the Supreme Court did not render final judgment, although it found that there was no evidence tending to establish an allegation material to the right of the plaintiff to recover. In that case there was a motion at the close of the plaintiff’s ease for a directed verdict, which was overruled and exception noted, but that motion was not renewed at the close of all of the evidence; and, upon a retrial of the case in the Common Pleas Court, plaintiff again obtained a judgment, which was affirmed by the Court of Appeals. In the second trial there was a motion to direct a verdict for the defendant at the close of all the evidence, and the Supreme Court reversed the Court of Appeals and the Common Pleas Court, and rendered final judgment, and, in doing so, pointed out in the opinion that the reason why such final judgment had not been rendered upon the reversal of the judgment in the first trial was, because in that first trial, the motion for a directed verdict, made at the close of plaintiff’s evidence, was not renewed at the close of all the evidence. Youngstown & Suburban Ry. Co. v. Faulk, 118 Ohio St., 480, 161 N. E., 530.

In a comparatively recent case, the Supreme Court reviewed two judgments of a Court of Appeals, each of which was a reversal of a Common Pleas Court judgment and an entry of final judgment in favor of the original defendant, although there was no motion in either trial court for a judgment in favor of defendant; and the Supreme Court reversed the Court of Appeals in both instances for rendering final judgment. The case is reported as the Bridgeport Bank Co. v. Shadyside Coal Co., 121 Ohio St., 544, 170 N. E., 358.

In a recent case, Industrial Commission v. Franken, 126 Ohio St., 299, 185 N. E., 199, the opinion does not disclose that no motion for a directed verdict was made, but we have examined the record in the Supreme Court and find that no such motion was filed in the trial of the ease, and no final judgment was. entered in the Supreme Court, although it is disclosed by the opinion that there was no dispute in the evidence, and although the court was clearly of the opinion that the facts disclosed by the record did not warrant an award under the Workmen’s Compensation Act (Section 1465-37 et seq., General Code), which was obtained by the, judgment in the Common Pleas Court and affirmed by the Court of Appeals.

There were proper motions filed' in the following cases: Majoros v. Cleveland, Interurban Rd. Co., 127 Ohio St., 255, 187 N. E., 857; Industrial Commission v. Baker, 127 Ohio St., 345, 188 N. E., 560; Hamden Lodge v. Ohio, Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246; and Greyhound Lines, Inc., v. Martin, 127 Ohio St., 499, 189 N. E., 244.

The application for final judgment in this case is denied.

For errors indicated, the judgment is reversed, and the cause remanded.

Judgment reversed amd cause remanded.

Funk and Stevens, JJ., concur in judgment.  