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Sellers v. Looper

December 7, 1972

SELLERS ET UX, APPELLANTS,
v.
LOOPER ET UX, RESPONDENTS



Appeal from Circuit Court, Josephine County. Samuel M. Bowe, Judge.

Kim L. Jordan, Grants Pass, argued the cause for appellants. With him on the briefs were Johnson, Sloan & Jordan, Grants Pass.

Oscar R. Nealy, Grants Pass, argued the cause for respondents. On the brief were Donald H. Coulter, and Myrick, Coulter, Seagraves & Nealy, Grants Pass.

Bryson, Justice. O'Connell, Chief Justice, and McAllister, Holman, Tongue and Howell, Justices.

Bryson

This is an action for damages based on fraudulent misrepresentations pertaining to the well on property plaintiffs purchased from defendants. The jury returned a verdict in favor of plaintiffs. On motion, the trial court granted judgment in favor of defendants notwithstanding the verdict, and the plaintiffs have appealed.

Plaintiffs assign as error the court's allowing the defendants' motion for judgment notwithstanding the verdict. They contend that such a motion can be based only on the grounds provided in ORS 18.140 (1) and that the motion for a directed verdict was a shotgun assertion and did not specify any of the grounds.

After the plaintiffs had presented their case-in-chief, the defendants moved for an involuntary nonsuit (incorrectly referred to as motion for directed verdict) and stated:

"* * * [W]e would submit that the Plaintiff has [plaintiffs have] not carried their burden and move for a directed verdict against the Plaintiffs, in favor of the Defendant."

After both parties rested, the defendant moved the court "for a directed verdict for the same reasons as argued in the motion earlier for involuntary nonsuit, in that we believe that the evidence presented by the Plaintiffs and Defendants, there is no question of fact raised on which reasonable men could differ."

We assume that at the time they moved for a directed verdict by reference to their previous motion for a nonsuit, that defendants were contending that plaintiffs had not presented evidence sufficient to support a verdict in their favor. Defendants argue here that the plaintiffs had not submitted evidence sufficient to establish fraudulent representations on the part of defendants to induce plaintiffs to enter into the contract to purchase the property.

A motion for a directed verdict or for a nonsuit must specify the grounds therefor and unless it does so, we should not consider the motion on review.

Further, the denial of a motion for a nonsuit is not a ground for a judgment n.o.v. as provided in ORS 18.140. Vancil v. Poulson, 236 Or 314, 324, 388 P2d 444 (1964); Clarizo v. Spada Distributing Co., Inc., 231 Or 516, 520, 373 P2d 689 (1962); Carlson v. Steiner, 189 Or 255, 220 P2d 100 (1950). The court denied the motion, and the record indicates that the trial court and

both counsel understood defendants' motion and its intendment.

The plaintiffs also contend: "Statements regarding quality, value or the like may be considered misrepresentations of fact where the parties are not on an equal footing and do not have equal knowledge or means of knowledge" and the "[d]ecision of whether a representation is of fact or of 'opinion' is always left to the jury and therefore the order setting aside the jury's verdict should not have been entered."

Interwoven with defendants' contention that the evidence was insufficient to justify the plaintiffs' verdict is their argument that the representation of a "good well" was "mere inclusion of adjectival words of ...


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