¶1*372The opinion of the court was delivered by
¶2The principal question presented by this record is the same as that decided by this .court in the case of Hall & Paulson Furniture Co. v. Wilbur, 4 Wash. 644 (30 Pac. Rep. 665). We are satisfied with the conclusion reached therein, and that decision must be held conclusive of such principal question. There are, however, two other alleged errors presented by the record in this case: (1) As to the action of the court in the impaneling of a jury for the trial of the cause; and (2) as to its action in instructing the jury to find a verdict for the plaintiffs.
¶3As to the first question, any error that the court might have committed could not have been prejudicial to the rights of the defendants if the action of the court presented by the second question above suggested is sustained. Defendants’ case could not have been at all affected by the composition of the jury if under the evidence presented to such jury the court was warranted in instructing it to render a verdict for plaintiffs.
¶4As to the second question, the defendants contend that, as there was an issue of fact made by the pleadings, the decision thereof should have been left to the jury, notwithstanding the fact that there was proof on the part of the plaintiff as to the existence of each of the material facts put in issue by the answer, and absolutely no proof in regard thereto on the part of the defendants. We are unable to agree with this contention. The testimony presented on the part of the plaintiffs having been sufficient to establish all of the allegations of the complaint put in issue by the answer, the court had the right to assume such facts to be proven for the purposes of that case unless the defendants introduced some proof tending to disprove ihe prima facie case thus made by the plaintiffs. In the case at bar the defendants, at the close of plaintiffs’ testimony, moved *373the court to non-suit the plaintiffs, and said motion having been denied, rested their rights upon an exception to such ruling and refused to put in any proof. Under these circumstances, we think an instruction to the jury to return a verdict for the plaintiffs was not erroneous.
¶5The judgment must be affirmed.