#### Benham vs. Purdy.

*December 19, 1879*

*January 7, 1880.*

*(1) Deposition: waiver of notice. (2) Court and jury.*

1. A failure to serve on a party notice of the taking of a deposition is waived by his joining in the commission and submitting cross interrogatories.

2. Where the evidence is conflicting and would support a verdict either way, it is error to instruct the jury to return a verdict for the plaintiff.

APPEAL from the Circuit Court for *Fond du lae*County.

Action for a sum of money alleged to have been collected by defendant upon a promissory note belonging to plaintiff, and converted by defendant to his own use. The answer denies plaintiff’s ownership of the note at the commencement of the action, and alleges that one Squires was the true owner thereof, and that defendant had paid him the amount collected thereon. ***

At the trial, defendant objected to the admission in evidence, of certain depositions, on the ground that there had been no service on his attorneys of any notiee of the taking of such depositions or of the affidavit on which they were founded, and that there was no certificate attached to the depositions, showing when they were taken. The objection was overruled.

At the close of the evidence, the court directed the jury to find a verdict for the plaintiff for a certain sum, and they *100found accordingly. From a judgment pursuant to tlie verdict, defendant appealed.

*JElihu Cobnan,*for tbe appellant.

*George W.*Garter, for tbe respondent.

OetoN, J.

Tbe objection of tbe appellant to tbe depositions for tbe want of notice was waived by bis joining in tbe commission and submitting cross interrogatories *(Miller v. McDonald,*13 Wis., 673; *Cameron v. Cameron et al.,*15 Wis., 1); and tbe certificate of the commissioner appears to be sufficient.

Tbe facts of this case, and undisputed, appear to be, that the appellant and one Squires were copartners, and as such held a note for tbe sum of $298 against tbe firm of Carney Bros., of the state of Michigan, which was in tbe hands of one Adams, of said state, for collection; that upon tbe dissolution of tbe copartnership this note was assigned to Squires; and that tbe money collected by Adams on tbe note was sent by him to the appellant. Tbe respondent claims that be purchased tbe note for value and took an assignment of it before its collection from Squires, and has demanded tbe money as tbe proceeds thereof from tbe appellant. Tbe appellant denies these allegations, and claims that Squires was tbe owner of tbe note and tbe proceeds thereof, and that be bad applied the same in liquidation of a certain demand be held against Squires.

Tbe learned circuit judge held, in answer to an inquiry of counsel, “ that tbe defense set up in tbe answer turns upon tbe ownership of tbe note,” which was strictly correct, and this seems to have been tbe material question in the case.

We think there was testimony given upon this question tending strongly to show that Squires was tbe real owner of tbe note and moneys, and not tbe respondent, which ought to have been submitted to the jury. The appellant and tbe witness J. H. Hauser, Esq., both testified that tbe respondent *101admitted to them, respectively, that Squires was the owner of the note.

To say the least of it, there was a direct conflict of evidence, and a question of the credibility of witnesses and of the weight of testimony, of which the jury were the exclusive judges. *Morrow v. Delaney,*41 Wis., 149.

To warrant the court to direct a verdict for either party, there should be no doubt about the evidence. Directing a verdict to be rendered *for*the plaintiff should rest upon the same principles as directing a nonsuit *(Cutler v. Hurlbut et al.,*29 Wis., 152); and the rule in such case is not to grant a nonsuit unless the plaintiff has clearly failed to make out a case, or when the testimony is conflicting and would sustain a verdict either way. *Grasse et ux. v. Mil., L. S. & W. Railroad Co.,*36 Wis., 582. A nonsuit should be ordered only when there is an .entire want of evidence which, on the most favorable construction, tends to establish the plaintiff’s case. *Imhoff v. Ch. & Mil. Railroad Co.,*22 Wis., 631. Tested by these rules, the circuit court clearly erred in directing a verdict for the plaintiff in this case.

*By the*Gourt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.