author: By THE COURT:

text:
    STATE, ex rel. HUNT, Relator, v. MONTGOMERY COUNTY BOARD OF ELECTIONS, etc. et, Respondents.
    Ohio Appeals, Second District, Montgomery County.
    No. 2327.
    Decided February 24, 1955.
    Jerome Goldman, Cincinnati, Carroll E. Hunt, Dayton, for relator.
    Mathias H. Heck, Pros. Atty., By John P. McHugh, Asst. Pros. Atty., Dayton, for respondent, Montgomery County Board of Elections.
    Jack E. Staley, Dayton, City Solicitor, for Village of Kettering.
    Mason Douglass, Dayton, for Village of Kettering.
   OPINION

By THE COURT:

Two matters are presented for adjudication. The first is a motion by the Village of Kettering that it be made a party to the action. The Village of Kettering may not be a necessary party, but it is a proper party. The motion will be sustained.

The second is a general demurrer to the petition. The petition prays for a writ commanding the defendant Board to order an election upon relator’s detachment petition. The petition recites that the relator has filed a petition with the Board conforming to all of the requirements of §709.39 E. C. to submit to vote the question of the detachment of described territory from the Village of Kettering. The demurrer admits the averments of the petition, but thereby asserts that they are insufficient in law to require that an election now be ordered by the respondent Board. The territory described in the petition incorporates 1882 acres of land, 1368 of which were included in a proposal to detach 3090 acres from the Village of Kettering voted upon at an election held April 21, 1953. At this election the proposal to detach territory was defeated. The Board bases its refusal to call an election, as requested, solely on that part of §709.39 R. C. which provides:

“If a majority of the ballots cast at such election are cast against detachment, no further proceedings shall be had in relation thereto for a period of two years.”

We are of opinion that the Board correctly interpreted the quoted part of §709.39 R. C., and properly refused to order the election sought by the petitioners.

“Further proceedings in relation thereto” as found in §709.39 R. C., may be all-inclusive.' It could be urged that it is not limited. It certainly refers to and includes further subsequent proceedings by election for detachment of the territory involved in an election provided by §709.39 R. C., wherein a majority of the votes were cast against detachment.

Our conclusion is supported by §3577-1 GC, before amended by §709.39 R. C. At that time the paragraph read:

“If a majority of the ballots cast at such election shall contain thereon the words ‘against detachment,’ no further proceedings shall be had in relation thereto, but this shall not be a bar to other proceedings for the same purpose.” (Emphasis ours.)

Had this provision concluded with the language immediately preceding the emphasized part, it would be the same in effect as now found in §709.39 R. C., with the exception of the time limitation. As formerly phrased, “shall not be a bar to other proceedings” might be well urged to mean proceedings other than by election. But this language has now been removed and the all-inclusiveness of “other proceedings” need not be determined.

It is urged by relator that the territory included in the present petition is not the same, or substantially the same, as incorporated in the election proposal of 1953, and, therefore, the election now requested should proceed. Of course it is not the same territory as it includes about 500 acres outside of that presented to the voters in the 1953 election for detachment of territory. However, 1368 acres of the territory included in the description in the present petition is the same as voted upon in 1953. This acreage represents over 44%, or a substantial part, of the 3090 acres voted upon in 1953; a substantial part being affected, the statutory bar operates.

The demurrer will be sustained.

MILLER, FJ, HORNBECK and WISEMAN, JJ, concur.


source: Caselaw Access Project

author: By BARTLETT, J.

license: Public Domain

text:
    SPAULDING, Plaintiff, v. MERCY HOSPITAL ASSOCIATION et, Defendant.
    Common Pleas Court, Franklin County.
    No. 187889.
    Decided September 22, 1954.
    A. J. Frericks, Columbus, for plaintiff.
    Knepper, White, Richards, Miller & Roberts, Columbus, for defendants Riebel and Oelgoetz.
   OPINION

By BARTLETT, J.

1. Motion to make definite and certain overruled on all branches.

3. Motion to strike overruled on all branches.

The action involves the relation of physician and patient. The motions in question are made jointly by the two physicians who are co-defendants.

On the motion to make definite and certain, the first complaint is that “the petition does not state which of the three defendants performed said acts” — to-wit, admitted X-rays into the body of plaintiff, etc. This Court has recently sustained in the instant case a motion for the defendant Hospital Association, requiring plaintiff to state whom she employed to administer the X-ray treatments to her, and who actually applied the X-ray treatments of which she complains. This should remove the basic complaint when complied with.

Considering, however, the relation of the parties in this case, physician and patient, and that the facts alleged generally in the petition, if true, are in the particulars, peculiarly within the knowledge of the physicians in attendance on the plaintiff in the matter complained of, the Court thinks that the same stringent rules, in respect to definiteness and certainty of allegation, ought not to be applied to the plaintiff, as there might properly be, if the minute facts generally stated in the petition were, from the nature of the case, as well known to her as they are to the defendants. Union Bank, etc. v. Bell, et al., 14 Oh St 200, 208; Barron, Boyle and Co., v. Pittsburg Plate Glass Co., et al. 7 N. P. 528; 31 O. Jur. Pleading, Sec. 34, p. 571; 41 Am. Jur. Pleading, Sec. 32, p. 311. The plaintiff may know generally the facts and circumstances bearing upon the X-ray treatment applied to her body, but she cannot be supposed to know as well as the specialist physicians in attendance on her. No surprise would be likely to result from the general averment in the petition. Gebhart et al. v. Sorrels, Admx. et al, 9 Oh St 461-464.

Generally under the Code practice, if a statement of facts without a statement of the time when they occurred constitutes a cause of action, no allegation of time is necessary. 31 O. Jur. Pleading, Sec. 60, p. 600; 41 Am. Jur. Pleading, Sec. 34, p. 313.

Upon the principles heretofore recited, each and every branch of the motion to make the petition definite and certain, is overruled.

There is little if any merit in the motion to strike certain words from the petition. They are certainly not prejudicial. Consequently, all branches of the motion to strike are overruled.

Entry accordingly with exceptions by counsel for defendants.


author: By THE COURT. By THE COURT.'

text:
    HOFFMAN, Plaintiff-Appellee, v. KNAUS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4773.
    Decided May 16, 1952.
    Elliott, Parrett & Hilliard, Columbus, for plaintiff-appellee.
    Russ Bothwell, Columbus, Albert Fosco, Cincinnati, for defendant-appellant.
   OPINION

By THE COURT.

This is a motion by the plaintiff-appellee seeking an order dismissing the appeal for the reason that the same is not a final order. The order referred to reads as follows:

“Motion to dismiss without prejudice to action in another court sustained. Petition and cross-petition dismissed. Costs of Plaintiff.”

The record reveals that the petition was captioned “In the Common Pleas Court” but was filed in the Municipal Court of Columbus; that it was an action for damages in the sum of $10,075.00; that the defendant filed a cross-petition praying for damages in the sum of $10,000.00. It appears that upon the plaintiff’s discovering his mistake of being, in the wrong court as the amount sought exceeded the jurisdiction of the Municipal Court, a motion was filed to dismiss “said action, without prejudice to action in another court, for want of jurisdiction.” It will be noted that the order dismissed not only the petition but also the cross-petition. This, we think, affected a substantial right of the defendant. The plaintiff was entitled under §11586 GC to a dismissal of his petition without prejudice, but under §11587 GC the defendant had the right to proceed to trial if the court had jurisdiction of the subject matter of the cross-petition, and if not, it should have merely dismissed the cross-petition. In Ohio Savings Bank v. Marleau, et al, 1 Abs 282, the Court held,

“A judgment of dismissal without prejudice is a final order from which error can be prosecuted to another court.”

See also, Passig v. Ossing, 51 Oh Ap 215.

We are of the opinion that the order appealed from is a final order as defined by §12223-2 GC. The motion will be overruled.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.

No. 4773. Decided September 25, 1952.

OPINION

By THE COURT.'

This is an appeal from a judgment of the Municipal Court of the City of Columbus, Ohio, dismissing plaintiff’s petition and defendant’s cross-petition.

Four errors are assigned, but one question only is sought to be raised, namely, whether the Court erred in sustaining plaintiff’s motion to dismiss the action without prejudice to action in another Court, for want of jurisdiction.

It is the contention of appellant that at the time the motion was sustained, although the petition prayed for damages in the sum of $10,075.00, the cross-petition in which the defendant prayed for judgment in the sum of $10,000.00, had been changed to $2000.00.

Unfortunately for the appellant the question sought to be presented is not exemplified by the record. The amended petition, which is in the transcript of docket and journal entries, carries a prayer for damages in the sum of $10,000.00, and there is no evidence of an amendment thereto.

The judgment will therefore be affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: By HUNSICKER, J:

text:
    STEINER, Plaintiff-Appellant, v. ROBERTS et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23456.
    Decided December 21, 1955.

      Edward I. Wallach, Leon J. Weiner, Cleveland, for plaintiff-appellant.
    John H. Bever, William H. Rosenfeld, Cleveland, for defendantsappellees.
    (HUNSICKER, J, DOYLE, J, of the Ninth District, MIDDLETON, J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law.

The action was commenced in the Court of Common Pleas of Cuyahoga County, seeking damages for an alleged misrepresentation in the sale of real property, purchased by plaintiff, Steiner, from the defendants Roberts and Turner.

In 1947, appellees Ivan H. Roberts and Melvin Turner were the owners of a four-suite apartment in Cleveland, Ohio. They each occupied one suite in the apartment building. They employed a real estate broker, one John Toby Drake, to sell this property. Mr. Drake procured Mr. Steiner as the purchaser, and ultimately a sale was consummated.

Mr. Steiner was told that each suite rented for $45 a month, or a total of $180 a month for the entire property. It is a fact that each tenant of the apartment, as well as each owner-occupant, paid $45 a month for the suite he rented.

At the time of the sale, there was in force and effect the Federal Housing and Rent Act of 1947, which established maximum prices for rental housing accommodations within the city of Cleveland, Ohio, including the four-suite apartment involved in this case. The legal maximum rental, under the Federal Housing and Rent Act of 1947, was $35 a. month per suite, or a total maximum of $140 a month for the entire property.

Steiner said he relied solely, in the purchase of this apartment building, on the representation that the property was being rented for its true legal maximum rent, and he made no inquiry to determine the true facts. Mr. Steiner, after the purchase of the apartment, continued to collect $45 a month for each suite, but later, when the tenants vacated the premises, was sued by the tenants for the difference between the rent collected by him and the legal maximum rental as fixed by the Federal Housing and Rent Administration. The tenants recovered from Mr. Steiner damages for the excessive rent so collected by him.

Mr. Steiner brought his action against the owners, the other two tenants (one of whom was related to Turner), and the real estate broker, John Toby Drake. One tenant-defendant was eliminated on the pleadings, and one tenant-defendant was voluntarily dismissed by counsel for Mr. Steiner. The broker, John Toby Drake, although served with a summons, did not answer or otherwise plead, and was not present at the trial.

Mr. Steiner, in his second amended petition, said, in part, that—

“* * * the defendants Roberts and Turner have conspired and combined with the other defendants herein to deceive and defraud this plaintiff, and, by various representations have misled this plaintiff and caused this plaintiff to suffer damages. * * *”

After the presentation of all of the evidence, the trial court, before submitting the issue to the jury, dismissed the action against the co-owner Turner, and the defaulting real estate broker-defendant, Drake, and directed the jury to return a verdict in favor of Turner and Drake. Judgment was entered on the action so taken by the trial court.

The claim as against the defendant Roberts was presented to the jury, and a verdict was rendered by such jury in favor of Roberts. It is from the judgment rendered on this verdict, and the judgment directing a verdict as to Turner and Drake, that an appeal is lodged in this court.

Steiner claims the trial court committed the following errors:

“1. In dismissing plaintiff’s case against the defendant John Toby Drake, who was in default of answer or other pleading, contrary to the statutes.

“2. In granting judgment and directing the jury to return a verdict, in favor of the defendant John Toby Drake.

“3. In failing to give judgment to the plaintiff or directing the jury to return a verdict in favor of the plaintiff against the defendant John Toby Drake, as provided by the statutes of the State of Ohio.

“4. In failing to reinstate the said John Toby Drake as a defendant upon plaintiff’s subsequent motion.

“5. In dismissing plaintiff’s case against the defendant Melvin Turner.

“6. In directing the jury to bring in a verdict in favor of the defendant Melvin Turner.

“7. In failing to reinstate the plaintiff’s case against the defendant Melvin Turner, upon plaintiff’s motion therefor.

“8. In charging the jury that they might consider whether the plaintiff, by the exercise of ordinary care and prudence, could have discovered the falsity of the alleged representations; and, if so, whether he neglected to use such care as he should havé used to discover them; that if he did not use ordinary care to discover such falsity, they must find for defendant.

“9. In so charging, in spite of the fact that there was not one word of evidence that such representation could have been verified in any way, whether or not known to or brought to plaintiff’s attention.

“10. In refusing to charge, as requested by plaintiff, that plaintiff was excused from making any further investigation when a material representation of a specific fact was made to him.

“11. In failing to charge, as requested by plaintiff, that plaintiff was entitled to rely upon the presumption that the rents represented as being charged were at the legal maximum.

“12. In permitting questions and answers by the successful party relative to rent litigation between the plaintiff and one Hahn, which occurred more than a year and a half after the fraudulent transaction alleged in plaintiff’s petition, such testimony being completely prejudicial and irrelevant.

“13. In failing to sustain objections to irrelevant cross-examination, clearly intended to excite the prejudices of the jury.

“14. In failing to take any action whatsoever when defense counsel in final argument went beyond the record.

“15. In failing to charge the jury correctly on the question of attorney fees.

“16. Other errors appearing from the record.

“17. In failing to grant a new trial.”

The evidence is in very great conflict as to the statements made by Drake and Roberts to Steiner, concerning the rent received and the legal maximum rent fixed by the Federal Housing and Rent Administration. Mr. Steiner said he did not discuss any of the matters relating to rent or to the sale of the premises with the co-owner Turner, nor with the tenants; but that all of his talk was with Drake, the real estate broker, and the co-owner Roberts.

Roberts testified that: he told Steiner he was receiving $45 a month per suite; he had trouble with the O. P. A. (the Federal Housing and Rent Administration); the legal rent was less than the amount paid by the tenants; he was preparing an application to be presented to the O. P. A. for an increase in rent, and that he would turn such papers as he had prepared over to Steiner, so he could complete the application. Roberts also testified that Steiner told him that he had had trouble with the O. P. A. on other property he owned, and that he was not interested in that feature of the property.

Testimony was adduced from Steiner that he had had difficulty with the O. P. A. on other real property which he owned. Steiner admitted he had talked with Roberts about the O. P. A. in general, and that he had had difficulty with that agency.

There is not the slightest evidence of a conspiracy. The trial court properly dismissed the action as to the tenants and the co-owner Turner.

Since there was no evidence of conspirary to defraud, was it proper to dismiss the action as to the defaulting defendant real estate broker. John Toby Drake?

In our consideration of this case, we will only discuss errors 1 through 4 and 8 through 11, since we do not find that the other claimed errors are prejudicial.

Secs. 2311.12 and 2323.10 R. C., deal with the matter of default judgments. The first section named has no application to the within action. We think that the second section clearly makes it an act of judicial discretion on the part of the trial court to grant, without the taking of testimony or other evidence, a default judgment against a defendant who, after proper service of summons, fails to answer or otherwise defend the action brought against him, when that action is not one of those mentioned in §2311.12 R. C.

The authorities sustain the position that, in the situation herein, it was within the discretion of the trial judge to require proof before entering a judgment against a defaulting defendant. Streeton v. Roehm, et al., 83 Oh Ap 148. See also: 23 O. Jur., Judgments, pg 779, See. 456; 3 Freeman on Judgments (Fifth Ed.), Sec. 1277; 78 A. L. R. 938, et seq.

There was no proof of conspiracy to defraud Steiner by Roberts and Drake, and there was no proof that Drake was guilty of misrepresenting the premises to Steiner. In such a situation, the trial court, in the exercise of its discretion, properly entered a judgment dismissing the action as to Drake.

We come now to a discussion as to claimed errors 8 through 11, which claimed errors relate to instructions to the jury.

The trial court told the jury:

“Also the law requires persons in their dealings with each other to exercise proper vigilance and to apply their attention to those particulars which may be supposed to be within the reach of their observation and judgment, and not to close their eyes to means of information which are accessible to them.

“It is the law that if the plaintiff, by the exercise of ordinary care and prudence, would have discovered the falsity of the alleged representations within a reasonable time, and he neglected to do so, then he cannot recover.

«* * *

“On the other hand, if plaintiff has proved these points, then you may ask further, and decide from the evidence whether it was possible for defendant Steiner, by the exercise of ordinary care and prudence, to have discovered the falsity of the alleged representations; and if so, whether he neglected to use such care as he should have used to discover them.

“If you find that the plaintiff, Mr. Steiner, could have used but did not use ordinary care to discover any false representations or concealment by the defendant, then your verdict must be for the defendant.”

We must note here that the fraud in this case is not predicated upon a claimed misrepresentation as to the physical condition of real property, and the rule recently announced by this court in the case of Traverse, et al., v. Long, et al., Cuyahoga County case No. 23,441, does not necessarily apply in a situation such as we have in the instant case.

We are dealing herein with the rules which apply and the principles of law which govern when misrepresentations are claimed to have been made respecting a nonphysical aspect of the real property — to wit, income, which claimed misrepresentations, with respect to such subject, induced the vendee to purchase the land and building during the time when the Federal Housing and Rent Act of 1947 was in force and effect.

The rule in Ohio, with respect to a recovery for fraudulent representation in the sale of property, was stated in the very early case of Wilkinson v. Root, Wright 686, to be that:

“If one purchases property on his own knowledge, he cannot recover for fraudulent representation of it, because he has not been deceived by it.”

It also is a rule frequently stated that a purchaser has a right to rely on the statement of the vendor as to the income and profits of real property, and need not make an investigation to determine the truth or falsity of the representation so made.

Nelson v. Buck, 6 Abs 279; Ertl v. Fabian, 6 Abs 703; Shoffstal v. Elder, 1 Oh Ap 390 at p. 399; affirmed, Elder v. Shoffstal, 90 Oh St 265; 23 Am. Jur., Fraud and Deceit, Sec. 68; 27 A. L. R. 2d 41, et seq.

The trial court in the instant case said, in effect, that a purchaser who buys real property, relying on the statement of the seller, when he could have made an investigation to determine the true facts, is guilty of a lack of ordinary care to protect himself, and cannot recover damages for the fraudulent statement made by the seller

In 3 Restatement of the Law of Torts, Sec. 540, the rule in such cases is stated to be as follows:

“The recipient in a business transaction of a fraudulent misrepresentation of fact is justified in relying upon its truth, although he might have ascertained the falsity of the representation had he made an investigation.”

There is no question but that a rent payment of $45 a month for each suite was being paid at the time the sale was made, but Roberts said he knew this was excessive and that he told Steiner it was excessive. Steiner denied that any such disclosure was made to him.

If we assume the truth of Steiner’s testimony that he relied upon the representation as to income, was he not justified in so doing, and hence not required to investigate to determine the true facts?

Certainly, in such circumstances as we find in this case, a defrauded party does not owe to the party who defrauds him an obligation to use diligence to discover the fraud. A failure on the part of Steiner, under the facts herein, to use ordinary care to inquire from the tenants or elsewhere, could not defeat his right to recover.

In 3 Restatement of the Law of Torts, Sec. 529, the text says:

“A statement in a business transaction which, while stating the truth so far as it goes, the maker knows or believes to be materially misleading because of his failure to state qualifying matter is a fraudulent misrepresentation.”

The comment following this text says, in explanation, that “A statement containing a half-truth may be as misleading as a statement wholly false. Thus, a statement which contains only those matters which are favorable and omits all reference to those which are unfavorable, is as much a false representation as if all the facts stated were untrue.”

We believe that, when Steiner asked about the income from the apartment, Roberts was bound to disclose the true situation. Steiner had a right to believe that $45 was a legal rent under the terms of the Federal Housing and Rent Act of 1947.

We have, through our own research, discovered some cases with factual situations very similar to those we find in the instant case. Thus, in the case of Tucker v. Beazley, 57 A. 2d 191 (Municipal Court of Appeals for Dist. of Columbia), the court said, at page 193:

“Defendant therefore had no right to withhold from plaintiffs the highly material and important information that the $297 rental had not been lawfully approved. Though he was telling the literal truth, he was really telling only a half-truth. When he undertook to state the rental income he was bound by law to tell the whole truth without suppressing any material fact known to him. A half-truth may be as misleading as a statement wholly false.”

See also: Borzillo v. Thompson, 57 A. 2d, 195; Fuhrman v. Farkas (Cal.), 222 P. 2d 105; Ceferatti v. Boisvert, 137 Conn. 280, 77 A. 2d. 82; 27 A. L. R. 2d 102, et seq.

In our review of the authorities, both in Ohio and elsewhere, it is apparent that, where a purchaser relies upon a positive statement of fact, with respect to the income which property produces, such purchaser is not required to investigate to determine the accuracy of the representation so made; but he may place full reliance upon the statement made to him by the seller.

We believe also that, where a statement with respect to rent is made to the purchaser, he is entitled to believe that the rent so received is a legal charge for the use of such premises.

In the instant case the charge of the court, which, in effect, placed a duty upon Steiner to investigate with respect to the truth or falsity of the representations as to the rent payments, imposed upon him a greater duty than the law requires, and, in the situation herein, constituted error prejudicial to his substantial rights.

The trial court was requested, at the conclusion of the charge to the jury, to instruct the jury with respect to the right of Steiner to rely on the statement of Roberts, if such statement was made by him, and that Steiner was not required to investigate concerning the rents being charged. The trial court was also requested, at the conclusion of the charge to the jury, to instruct the jury that Steiner had a right to rely on the presumption that the rents being charged were at the legal maximum. The trial judge refused such requests, and, in those respects, he committed prejudicial error in refusing to charge on those subjects above named, to which his attention was directed.

We therefore determine that, in the respects set out in this opinion, the trial court committed error prejudicial to the substantial rights of the appellant.

. The judgment is reversed, and the cause remanded to the Court of Common Pleas for further proceedings.

Judgment reversed and cause remanded.

DOYLE, J, MIDDLETON, J, concur.


author: By CONN, J.

text:
    BERTRAM, Appellant, v. KROGER COMPANY et, Appellees.
    Ohio Appeals, Second District, Darke County.
    No. 733.
    Decided November 18, 1955.

      Spidel, Staley & Hole, Greenville, for appellant.
    Holzfaster & Hoefling, Dayton, for The Kroger Company, Appellee.
    Paul W. Younker, Goubeaux & Goubeaux, Greenville, for The City of Greenville, appellee.
    (CONN, J., of the Sixth District, sitting by designation in the Second District.)
   OPINION

By CONN, J.

Plaintiff brought this action in the common pleas court against defendants to recover damages for personal injuries alleged to have been sustained by her by reason of defendant’s negligence. At the close of plaintiff’s evidence in chief, on separate motions of defendants, The Kroger Company and the City of Greenville, the trial court granted said motions and directed the jury to return a verdict in favor of said defendants. Judgment was entered thereon and plaintiff was ordered to pay costs. From this judgment, plaintiff appealed to this Court on questions of law.

It appears that defendant, Versal A. Senseman, was not served with summons. The parties will be designated herein as in the court below, plaintiff and defendants, Company and City.

In the petition of plaintiff, it is alleged that on November 15, 1949, at approximately 12:30 o’clock P. M„ she was walking on the sidewalk “situated on the premises” along Gray Avenue and occupied and used by defendant Company in Greenville, Ohio.

That at said time and place, said Company maintained a manhole opening with a round steel cover thereon for purposes of access to drainage pipes on said premises; that said manhole was situated on said sidewalk and was allowed to become out of repair, and the cover thereon bent and loose, and was dangerous to pedestrians, which defendants well knew.

That plaintiff, while walking on said sidewalk and without knowledge of the dangerous condition of said manhole, stepped on same and it gave way and plaintiff fell into said opening; that plaintiff sustained numerous and painful injuries to different parts of her body. Plaintiff prays judgment in the amount of $4025.00.

For answer to plaintiff’s petition, the Company denied generally the material allegations therein, and further alleged that it had no control over said manhole and no notice of said alleged defective cover.

The City, for answer herein, also denies the material allegations in plaintiff’s petition, and says that it had no knowledge of the existence of the said manhole and cover, and avers that any injuries sustained by plaintiff were caused by plaintiff’s own negligence.

Plaintiff’s assignments of error are that the trial court erred in refusing to admit testimony offered by plaintiff, in directing a verdict in favor of defendants at the close of plaintiff’s case in chief, and in overruing plaintiff’s motion for a new trial.

The alleged error of the court in refusing to admit testimony is not discussed in plaintiff’s brief, and will be considered as waived.

An issue of law is raised on a motion to direct a verdict and such motion should be denied where the party against whom the motion is directed has offered evidence tending to support all the material issues which are necessary in making a prima facie case. The constitutional right of trial by jury is carefully guarded by the courts, and the trial court, in passing on a motion for a directed verdict, may not make a finding of fact, or weigh the evidence, or draw inferences therefrom, or determine a fact issue upon which reasonable minds may differ.

However, the trial court, as a matter of law, may grant a motion for a directed verdict when, upon consideration of all the evidence offered and all reasonable inferences that arise thereon, it clearly appears that the party against whom the motion is directed has no cause of action. 39 O. Jur., 796, Sec. 181.

The evidence shows that the defendant Company operated a retail grocery store at the southwest corner of Martin Street and Gray Avenue in the City of Greenville; that the store building was located on the west side of the lot, and that on the east side thereof and abutting on the west side of Gray Avenue, the Company maintained a parking lot for use by its customers.

On the day in question, at about noon, plaintiff and other members of her family had visited the retail store of the Company, made purchases and then with the articles purchased left the store, going east on the south sidewalk of Martin Street to the corner, and then south on the sidewalk on the west side-of Gray Avenue where, after some distance, plaintiff stepped on the cover of a manhole, which slipped, and plaintiff fell into the manhole. Plaintiff sustained serious and painful injuries.

There is no evidence that the Company maintained the manhole for its own uses and purposes. The evidence shows that the Company had previously placed barricades along the east side of the parking lot to prevent their customers from driving their automobiles directly onto Gray Avenue; that in some instances the barricades were avoided and customers of the Company, in leaving the parking lot, drove their automobiles over the sidewalk at or near where the manhole was located in order to more directly reach Gray Avenue.

We will first consider the state of the record in relation to the Company’s liability to plaintiff.

Plaintiff contends that the Company knew the sidewalk was improperly used by their customers, and that the cover on the manhole thereby became defective and dangerous to pedestrians; that there was nothing else shown in the record that caused the manhole to become defective and unsafe; and that it follows the wrongful use of the sidewalk by the Company caused the damage to the cover, and that being a negligent act, a jury question was raised when plaintiff rested her case.

The fallacy of this contention lies in the fact that even if we assume that the Company was chargeable with an unlawful use of the sidewalk, and would be legally responsible for the acts of its customers in creating a dangerous condition in the sidewalk, there is no evidence in the record that such use had caused damage to the cover whereby the sidewalk became unsafe for pedestrian traffic.

It is inferable from plaintiff’s evidence that the cover on the manhole at the time plaintiff was injured was not in good repair, or not properly placed over the manhole. This inference receives support as the evidence tends to show that shortly after plaintiff was injured an inspection of the cover revealed that it was loose and teetered, and did not fit the opening in the manhole. When, how and by whom the cover was rendered unsafe, is not shown by plaintiff’s evidence.

It is pertinent to point out that the evidence shows the Company was in possession and control of the premises occupied by it under a lease from the owner. However, the rule is uniformly recognized in this State that an abutting owner or lessee in possession and control is not liable to third persons who, in using the sidewalk, sustain an injury by reason of a defective condition therein, unless it is shown that such condition was created or negligegntly maintained by such owner or lessee in possession and control of the abutting premises See Eicham v. Lustig’s, Inc., 161 Oh St 11.

It was incumbent on the plaintiff to introduce some evidence of a substantial character on each of the two essential ingredients of the alleged tort, to-wit: the injuria and the damnum. The record shows that plaintiff sustained substantial damages without fault on her part, but it fails to show any facts from which an inference may be drawn that the Company was the wrongdoer.

It follows that the trial court did not err in directing the jury to return a verdict for the defendant Company as a matter of law.

We shall next consider the state of the record as to the liability of the City, at the close of plaintiff’s case.

Sec. 3714 GC (§723.01 R. C.) imposes on the City the care of sidewalks and the duty to keep them “in repair and free from nuisance.”

In the application of this statute, the courts of this State, in numerous cases, have uniformly held that the liability of a municipality arises only in a case where there is evidence of a dangerous condition existing by reason of no compliance with the statute, and notice thereof to the City, either actual or constructive.

It is inferable from the record that the cover on the manhole in the sidewalk was unsafe at the time plaintiff, as a pedestrian was walking thereon, and also that this defective condition was the proximate cause of plaintiff’s falling into the manhole. Further inferences may not be indulged in on the record before us, that the City had notice that the operation of automobiles over the sidewalk at that point caused damage to the cover on the manhole, creating thereby a nuisance in that portion of the sidewalk, and that the City had notice thereof, or that such condition had existed such length of time whereby the City was charged with constructive notice. Sobolovitz v. Lubric Oil Co., 107 Oh St 204.

In other words, there is no evidence showing for what length of time the cover on the manhole had been damaged or tampered with, thereby creating a nuisance in the sidewalk. Was it momentarily before plaintiff fell into the manhole, or had the condition existed a considerable length of time?

The City’s liability under the statute does not arise in this case until it is charged with notice of the dangerous condition in the sidewalk. It follows that the trial court did not err in directing a verdict for the defendant City.

Judgment of the trial court should be affirmed and the cause remanded thereto for execution for costs. It is so ordered.

MILLER, PJ, HORNBECK, J, concur.


text:
    AILES, Plaintiff-Appellant, v. MICHIGAN MOTOR FREIGHT, INC., and THE UNITED TRUCKING SERVICE, Defendants-Appellees.
    Ohio Appeals, Second District, Shelby County.
    No. 168.
    Decided October 3, 1952.
    Myers & Myers, Celina, Blake & Lewis, Sidney, for plaintiff-appellant.
    Pickrel, Schaeffer & Ebeling, Dayton, H. T. Haacke, Jr., William T. Selva, of Counsel, Harry K. Forsyth, Sidney, Landis, Ferguson, Bieser & Greer, Dayton, for defendants-appellees.
   OPINION

By THE COURT:

Submitted on application for rehearing. The appellant has filed an affidavit, the substance of which is that one of the counsel for appellant had sickness in his home during the period that the assignments of error and brief were required to be filed. The record shows that two separate law offices were associated in representing the appellant and there is no showing that at least one of the counsel could not have filed the papers within the time required by rule.

The application for rehearing is overruled on the authority of Anderson v. Industrial Commission of Ohio, 135 Oh St 77.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: Per CURIAM.

text:
    PATTERSON, Plaintiff-Appellant, v. HENRY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Harrison County.
    No. 281.
    Decided January 30, 1953.
    John G. Worley, Morris O. Gibby, Cadiz, for plaintiff-appellant.
    Birney Pettay, Edward Mosser, Cadiz, for defendants-appellees.
   OPINION

Per CURIAM.

Plaintiff appealed on questions of law and fact from a judgment of the court of common pleas entered upon a verdict of the jury returned for defendants in plaintiff’s action filed in the court of common pleas against them to recover damages for injuries sustained as the result of an assault and battery, to which defendant, R. B. Henry, pleaded guilty before a justice of the peace of Harrison county upon an affidavit sworn to by his father, defendant George Henry.

The appeal was not properly appealed as one on questions of law and fact. The words “and fact” were stricken from plaintiff’s notice of appeal, and it appearing that a bill of exceptions was filed the appeal was retained, argued, submitted, and will be determined as one on questions of law.

On December 28, 1948, by means of a team of horses and scraper plaintiff was engaged in grading a leased tract of land situated near his farm in Harrison county. In the course of that work he drove the team of horses between gasoline pumps and a store building owned and operated by defendants, who objected on the ground that he was distributing dirt on their property, although the ownership of the land is in dispute. There is evidence that as a result of that objection defendant, George Henry, physically held and later released plaintiff, and on plaintiff’s next trip with the scraper defendant, R. B. Henry, son of defendant, George Henry, struck plaintiff, knocked him down, and beat him, as the result of which plaintiff sustained personal injuries.

Plaintiff contends by his assignments of error that the court erred in the admission and in the exclusion of evidence “in that the appellees were, allowed to confuse the issue by the introduction of testimony on their part irrelevant to the issues in the action,” and as a result of which appellant was prejudiced in presenting his case; that the court did not make clear in his charge to the jury the law governing assault and battery and the legal liability of those engaged therein, and “the charge was thus so inadequate as to be prejudicial to the appellant”; that “the verdict and judgment was contrary to law and against the manifest weight of the evidence”; and that the court erred in overruling his motion for a new trial.

As to the admission of evidence plaintiff maintains that the trial judge erred to his prejudice in the admission on cross-examination of plaintiff of evidence that defendants were annpoyed by plaintiff’s methods of prosecution of the work in which he was engaged since, as they contend, “the sole issue was whether Patterson had attacked the Henrys so that they were entitled to act in self defense.”

We do not believe that the trial judge erred to plaintiff’s prejudice as urged in this assigned ground. Evidence of conduct of the plaintiff causing annoyance to defendants was admissible on the right to punitive damages.

With reference to the exclusion of alleged properly admissible evidence plaintiff contends that the trial judge erred to his prejudice in excluding the record of a Justice of the Peace showing that defendant, George Henry, made affidavit against defendant, R. B. Henry, to the commission of an assault and battery, and the former’s plea of guilty thereto. We find no merit in this assigned ground of error under the circumstances shown in the proceeding in the Justice of the Peace Court.

Plaintiff was later afforded the opportunity, on cross-examination, of showing that R. B. Henry had plead guilty to an affidavit filed against him by George Henry charging him with assault and battery upon plaintiff. Such plea by R. B. Henry was an admission against his interest, and it would go to the jury otherwise than by the record of the Justice of the Peace.

In referring to compensatory and punitive damages in his general charge, the trial judge referred to mitigation and provocation, and charged the jury inter alia with reference thereto in these words “brought about by any words or acts of the plaintiff toward the defendants, if any have been shown, that tended to provoke the defendants to commit an assault and battery upon the plaintiff.” We find the trial court clearly explained to the jury that mitigating circumstances can be considered only in relation to punitive damages. But plaintiff contends the court should have “offset” the effect of such charge “by explaining under what circumstances an assault and battery was justified under the law, and what measure or force can lawfully be used where bodily harm is reasonably anticipated or what rights the respective parties had in pursuing any business on which they were engaged so long as it did not encroach upon the legal rights of others.”

If any omission of the trial court to so charge tended to confuse the jury upon the issue of defendant’s guilt of the assault and battery alleged in the petition, plaintiff should have requested a specific charge thereon. So far as we find by the pleadings and evidence defendants had not sought to justify an assault by them on the ground of self-defense, that-being an affirmative defense required to be asserted in the answer. Their defense was that they had not committed the assault and battery alleged in plaintiff’s petition. There was, therefore, no occasion to charge on “self-defense.” But if the jury found for plaintiff and that defendants had perpetrated the assault and battery through malice toward plaintiff, then in mitigation of punitive damages only the jury were properly instructed they might consider provocation, if any had been shown. We do not find the charge prejudicially erroneous.

It is contended by appellant that the verdict is against the manifest weight of the evidence, and it must be admitted there is considerable evidence shown in the record upon which the jury could properly have found for plaintiff. But the evidence is conflicting, the defendants denying any assault upon plaintiff. Had the members of this court been sitting as the jury we may have arrived at a verdict for plaintiff upon the evidence. But we are not a jury, we did not see the witnesses, and we have no opportunity to correctly determine the credit to be given to their testimony. That was the province of the jury, and we find nothing in the record which should induce this court to usurp the functions of the jury.

Finding that this case has been fairly tried, and that substantial justice has therefore been had in the trial court, the judgment is affirmed, no prejudicial error intervening.

Judgment affirmed.

NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, concur.


text:
    CROW, Disbarment, In re.
    Ohio Appeals, Second District, Champaign County.
    No. 138.
    Decided August 5, 1955.
    D. H. Jackman, London, Richard P. Faulkner, Edwin L. English, Russell B. Holding, Urbana, Committte for the Motion.
    Reed M. Winegardner, Washington C. H., for appellant-Contra the Motion.
   OPINION

By THE COURT:

Submitted on motion of the Committee in these proceedings for an order vacating the stay of execution of order of disbarment entered by this court on May 23, 1955. The motion asserts that this court was without jurisdiction to make the order for five reasons:

(a) The application was not made in the proper Court;

(b) The motion was not in writing;

(c) Notice of the time and place of the hearing on the application was not given to the committee;

(d) Terms were not prescribed by the court under which said alleged stay was to be effective;

(e) Said order does not set forth the findings of facts and conclusions of law which constitutes the good cause recited therein.

The Committee on behalf of the motion cites §4705.04 R. C.;

“In case of suspension or removal of an attorney at law by the court of common pleas, an appeal on questions of law may be had to the court of appeals, and the sentence of either the court of common pleas or the court of appeals may be reviewed on appeal on questions of law in the supreme court. If such suspended or removed attorney shall desire a modification of the decree of suspension or removal, he shall file a written motion therefor in the court which entered such decree.”

That part of the section contained in the last sentence thereof is emphasized by the Committee.

In our judgment, the emphasized portion of the section has no application whatever to proceedings on appeal which are specifically authorized by the first sentence of the section. The right of appeal has been recognized in every reported case of review of orders disbarring attorneys at law, and, in this court orders have been, without exception, stayed pending disposition of the appeal upon the giving of a supersedeas bond.

The proceeding under review is a civil action as to which the right of supersedeas on appeal on questions of law has full application.

To require appellants who desire to give supersedeas bonds to show good cause before suspension of execution of orders is impractical because it probably would necessitate an examination of the records upon which the orders were predicated, which would not then be available.

That part of the section which the Committee emphasized has application only when, and if, it has been determined that there is a valid, subsisting judgment. The provision may be invoked by motion at any time during the period of the disbarment order and is directed to the court which made the order. Here, it is the contention of the appellant that there is no valid order of disbarment which question may be properly raised on his appeal.

In the matter of John A. King, 54 Oh St 417, cited by the Committee, is confirmatory of our view of the controlling statute and in no sense raises any question of the right of the appellant here to prosecute his appeal under the appeal statutes and under the specific provision of §4705.04 R. C.

The motion will be overruled.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By GRIFFITH, J.

text:
    CROW, Disbarment, In re.
    No. 138.
    Decided November 25, 1955.
    J. Harvey Crow, Cleveland, Reed M. Winegardner, Washington C. H., Stanley Denlinger, Akron, for appellant.
    Richard P. Faulkner, Edwin L. English, Russell Holding, Urbana, D. H. Jackman, London, the Committee appellees.
    (GRIFFITH and NICHOLS, JJ, of the Seventh District and FESS, J, of the Sixth District sitting by assignment.)
   By GRIFFITH, J.

This is a motion suggesting diminution of the record. The transcript is not complete. It embraces only so much of the testimony and court proceedings as was requested by the respondent, J. Harvey Crow, together with a part of the exhibits offered in evidence.

Mr. Crow elected to submit only so much of the bill of exceptions as he deemed necessary for his appeal. It is not certified as a complete transcript but merely as a partial bill of exceptions.

Sec. 2321.14 R. C., provides:

“When justice requires it, upon notice to all parties, an omission in the bill of exceptions occurring through accident or error may be corrected by the reviewing court, or it may be remanded to the trial court for such correction.”

The latest pronouncement by our Supreme Court on this subject is to be found in Syllabus 1 of the case of Elser v. Parke, 142 Oh St 261 (Nov. 24, 1943), which reads as follows:

“Before an appellate court may remand a bill of exceptions to a trial court for correction upon application made under §11572-a GC, a showing must be made that an omission in such bill occurred through accident or error.”

This holding requires this Court to overrule the motion for an order of diminution of the record. Motion overruled.

NICHOLS and FESS, JJ, concur.


author: By DOYLE, J.

text:
    ZOLNAY, Appellant, v. L. A. BURGETT CO. et, Appellees.
    Ohio Appeals, Ninth District, Lorain County.
    No. 1259.
    Decided February 13, 1952.
    Henry P. Webber, Lorain, for appellant.
    William G. Wickens, Lorain, for appellee The L. A.- Burgett Co.
   OPINION

By DOYLE, J.

There is presented a motion for an order dismissing the appeal on questions of law and fact and the fixing of a time “for the settlement of a bill of exceptions, whereby this appeal may be heard on questions of law * *

It appears by inspection of the record that an appeal bond has not been filed. The appellant, in excuse for his failure to take the required statutory step for an appeal on questions of law and fact, states by affidavit that the trial court had refused to fix the amount of the bond to be given. This statement is denied by the trial judge, with the following comment: “approximately three weeks ago, following * * * ithe) overruling of the appellant’s motion for a new trial, affiant told Mr. Henry P. Webber, attorney for the appellant, that Mr. William G Wickens, attorney for the appellees, wanted to be heard on the question of the amount of the appeal bond; that affiant then told said Mr. Webber to confer with said Mr. Wickens, fixing a time when they could both appear before said affiant on the question of the amount of said bond; that said Mr. Webber then promised said affiant that he would confer with said Mr. Wickens on this subject; that since that time affiant has had no conversation or other dealings with said Mr. Webber on the subject of said bond; and that affiant has never refused to fix the amount of said appeal bond.” It also appears by the affidavit of Mr. Wickens, counsel for one of the appellees, that Mr. Webber “at no time contacted * * * (him) with respect to his intention or desire to file an appeal bond * * *.”

From the statements above, it appears that the trial court did not refuse to fix the amount of an appeal bond, but did suggest a procedure for a hearing on the determination of the amount of the bond which was not carried through by attorney Webber for his appellant.

The fact remains that an appeal bond was not filed within the provisions of §12223-4 GC. We are not called upon to determine the question of whether an absolute refusal of the trial court to fix the amount of the bond would create an exception to the mandatory provisions of the statute, because we find from the facts that the failure to have the bond fixed in amount and filed was due entirely to the failure of counsel for appellant to carry out a reasonable request of the court.

It is our conclusion, therefore, that an appeal on questions of law and fact was not properly perfected, because of the failure to file an appeal bond under the provisions of §12223-6 GC.

Under the appellate procedure practice, the appeal will be retained and stand for hearing as an appeal on questions of law (Bauer v. Grinstead, 142 Oh St 56), and, under the authority of §11564 GC, the appellant will be granted thirty days for the preparation, settlement and filing in the Court of Common Pleas of a bill of exceptions.

The motion is sustained, and the motion of the appellant to dismiss the motion here decided is overruled.

Motion of appellee sustained.

Motion of appellant overruled.

HUNSICKER, PJ, STEVENS, J, concur.


author: By HORNBECK, J.

text:
    PARKER BROTHERS, INC., Plaintiff-Appelle, v. POPULAR OIL COMPANY, a Corporation, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5087.
    Decided April 21, 1955.

      Hamilton & Kramer, Joseph R. Hague, of Counsel, Columbus, for plaintiff-appellee.
    Schwartz & Gurevitz, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

This appeal proceeds as upon questions of law from a judgment of the Municipal Court of the City of Columbus for plaintiff and against the defendant in the sum of $559.27. The cause was submitted to a judge without a jury and separate findings of fact and law requested and returned. Issues were drawn between the parties by petition, answer and cross-petition,, reply and answer to the cross-petition and reply to the answer to the cross-petition.

A motion for new trial was filed and overruled. No excptions were noted to the overruling of the motion for new trial, nor to the findings of fact and law as returned and no request was made to amplify the findings.

Plaintiff’s petition consisted of two causes of action, the first of which was upon a contract for the installation of two 20,000 gallon tanks and excavation of necessary pits and other things necessary to be done in regard to the same and additional work requested by C. M Hicks, General Manager of defendant corporation. The amount claimed on this cause of action was $1145.00. The second cause of action was for work and labor performed on a gas station at the request of the General Manager of defendant corporation. The amount claimed on this cause of action was $185.00. Defendant, in its answer, denies that there is $1145.00 due plaintiff on its first cause of action; avers that there was an agreement by which plaintiff was to perform the services for the sum of $800.00; that plaintiff being unable to perform certain part of the work, it was done by another and paid for in the sum of $80.00 by the defendant. Therefore, there is due plaintiff from the defendant on its first cause of action the sum of $720.00. Upon the second cause of action, it is averred that the reasonable value of the services performed was $30.00, and not $185.00.

Plaintiff claims the sum of $1145.00 on its first cause of action and $185.00 on its second cause of action, or a total of $1330.00. Defendant admits $720.00 due on the first cause of action and $30.00 due on the second cause of action, a total of $750.00. There was support for the respective contentions of the parties, except as hereinafter indicated. Thus, the findings and judgment on the issues drawn on the petition and answer could have been at any figure from $750.00 for the plaintiff to $1330.00, the total amount claimed by it.

In the cross-petition, defendant sets up an account for gas, oil and accessories furnished plaintiff, $1332.26, accounts receivable, $139.76, rent, $200.00, returned check, $124.04, overcharge on battery, $4.12, overcharge on tire, $8.36, and a sign, $22.50 as charges, a total of $1831.04, and credits plaintiff with inventory in gasoline station of $880.39, showing a balance due the defendant of $950.65, for which it prays judgment. Plaintiff, answering, admits the correctness of the charges for accounts receivable and for returned check, denies that $200.00 or anything is due for rent for overcharge on battery, overcharge on tire, or for sign, and alleges that it is entitled to a further credit of $185.00 for certain bad gasoline provided it by defendant, and for $49.94, for shortage of gasoline delivered.

Plaintiff, therefore, claims that the balance of $950.65 shown to be due it from defendant by its itemized statement should be reduced by $234.98 and that it was entitled to further credits thereon, in the sum of $234.94, a total of $469.92 which would leave a balance due defendant on its statement of $480.73; that, crediting this sum against the $1330.00 claimed by plaintiff in its petition would leave a balance of $849.27 for which plaintiff claimed judgment.

Thus, upon the issues made by the cross-petition and answer thereto, there could have been found for the defendant any sum from $950.65 as claimed by it, in its itemized account, down to $480.73, the amount conceded to be due on its account in the cross-petition. The reply is a general denial of the averments of the cross-petition.

The Court, in its findings of fact and conclusions of law, merely sets out the claim of plaintiff in its first and second causes of action and the claim of defendant in its answer and cross-petition and the reply of plaintiff to the cross-petition, and then makes this finding:

“The court acting as a jury, finds for the defendant in the amount of $290.00 for items in the cross-petition, and for the plaintiff in its reply to the cross-petition of the defendant in the amount of $849.27 ”

Then this conclusion of law:

“This court concludes as a conclusion of law that the plaintiff is entitled to recover the sum of $569.27.”

Thereafter, the court corrected the judgment for plaintiff to the amount of $559.27.

It is manifest that the findings of fact and conclusions of law are of no assistance to this Court. They do not conform to the requirements of such findings. There is no finding responsive to the claim of the plaintiff in its petition and the issue made by the answer thereto, and the amount due plaintiff, nor upon the account of defendant set up in its cross-petition and the issue by the answer and reply thereto as to the amount due defendant.

But as we have indicated, no exceptions were noted to the manner in which the findings were made and no request for amplification.

Upon the foregoing state of the record, appellant assigns four assignments of error:

1. Failure to rule that there was an account stated.

2. Failing to rule that Mr. Hicks was not authorized to make or modify a contract between the principal parties.

3. Failing to rule that the contractor was fully responsible for all duties connected with the installation of tanks according to the contract between the parties.

4. In ruling that the original contract was modified so as to allow an additional charge of $100.00 against the defendant for breakage of cables of appellee’s machinery.

Upon the first assignment of error, there is no issue drawn by the pleadings as to an account stated between the parties, it was not urged at the trial, although it was claimed evidentially that the account of defendant against plaintiff was conceded to be correct. There is no finding carried into the separate findings of fact and law nor in the judgment respecting an account stated. There is nothing in the record which exemplifies this assignment of error.

Upon the second assignment, there is support in the record that both contracts, written and oral, were agreed to not only by Hicks but by Jacob Mattlin, who if he did not have actual authority to bind defendant, certainly had apparent authority so to do.

The third assignment is not well made because the written contract does not bind the plaintiff to be responsible “for all duties connected with the installation of the tanks” and the terms of this contract and the respective obligations of each party were in dispute on the factual development.

Upon the fourth assignment, the same observation may be made as to the third.

In the motion for new trial it was urged that the judgment was too high but this is not specifically assigned as error on this appeal, nor is the weight of the evidence raised. Although we cannot determine just what computation was made by the trial judge in reaching the judgment entered, it is obvious that it is $270.00 less than the plaintiff claimed was due it upon a reconciliation of the respective claims of the parties. The item of $200.00 which is in the charge, as for rent, in the account of defendant against the plaintiff was denied by it. The evidence, however, contains no support for this defense. Upon every other item in the contracts upon which plaintiff sued and in the account upon which defendant relied there is evidence to support the judgment which is well within the limits of the respective amounts claimed to be due by the parties.

Appellee urges that the errors assigned in this Court were not urged below and that the grounds upon which the motion for new trial was predicated may not be considered here because no exception was noted to the overruling of the motion. The appeal might well be disposed of upon the foregoing contentions, but we have considered the assignments’ of error as though they were properly before us for adjudication.

The judgment will be affirmed.

MILLER, PJ, WISEMAN, J, concur.


author: By THE COURT.

text:
    MARKLEY, Plaintiff-Appellee, v. MOTTER, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4748.
    Decided September 25, 1952.
    Frank E. Bennett, Columbus, for plaintiff-appellee.
    B. N. Murray, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Municipal Court of Columbus, Ohio. The action was instituted by the plaintiff-appellee to recover a ■ deposit of $400.00 made on a contract to purchase certain real property, the same being paid to the defendant-appellant as broker. The contract specified that said deposit was to be held in trust until its terms were accepted and conditions fulfilled. It specified further that it was made contingent upon the buyer being able to get a loan of $12,000.00 on the property within fifteen days.

On the issues joined the defendant-appellant admitted the contract and deposit of the $400.00 but denied that all of the terms and conditions of the contract had not been fulfilled. The trial court found in favor of the plaintiff for the amount prayed for.

The errors assigned are threefold, to wit:

1. The Court committed error in overruling defendant’s motion to plaintiff’s petition requiring the same to be made definite and certain.

2. The Court committed error in overruling defendant’s motion for judgment on the evidence and pleadings made when plaintiff rested its case.

3. The Court committed error in finding for the plaintiff on his petition and also for the plaintiff on defendant’s cross-petition. Said finding being against the manifest weight of the evidence.

We find that the Court committed no prejudicial error in overruling the defendant’s motion to make the petition definite and certain.

As to assignments Numbers 2 and 3 a factual question was presented for the determination of the trial judge. The pertinent question was whether the plaintiff was able to procure a $12,000.00 loan as specified in the contract. We have read the entire bill of exceptions and find that there was a direct conflict in the testimony on this question.

On factual questions a reviewing Court will accept the determination of the fact-finding entity, be it Court or jury, unless so manifestly against the weight of the evidence as to shock the conscience to permit it to stand. We find nothing in this record to substantiate a reversal on the weight of the evidence. Finding no error in the record the judgment will be affirmed.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


text:
    ROSS et, d. b. a. VET’S INN, Appellants-Appellees, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5113.
    Decided November 4,1954.
    Walter S. Houston, Cincinnati, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for appellant.
    (MONTGOMERY, PJ, of the Fifth District, NICHOLS and GRIFFITH, JJ, of the Seventh District, sitting by designation.)
   OPINION

By THE COURT.

The Board of Liquor Control held that the appellees who were permit holders of a.class D-5 permit in Cincinnati did sell whiskey by the bottle for consumption off the premises and did sell on the permit premises intoxicating liquor in an original container which had been refilled. Their permit was suspended for a period of sixty days. Thereafter that judgment of suspension was reversed by the Court of Common Pleas and from that judgment of reversal the appeal was perfected to this Court. In the meantime, the Common Pleas Court had enjoined the enforcement of the suspension order and the injunction remains as of this date. The Court of Common Pleas in his reversal order stated the facts correctly and as we find them from the transcript of the record. We cannot agree with the conclusion which he reached upon these facts. He stated that in his judgment without the personal testimony of the man Britton, no case was made out against the appellees, and that the record before him on appeal did not support the Board’s order by “reliable, probative and substantial evidence.”

It is with that conclusion that we cannot agree. Appellees’ counsel in their brief properly concede “that there is no requirement in law that there must be direct evidence and that circumstantial evidence may be substituted to support an order.” In that same brief there are recited authorities to the effect that a theory may be established by circumstantial evidence where the only reasonable conclusion that can arise is the theory sought to be established.

That certainly is the law and certainly is reasonable,

In the instant case these officers who were witnesses for the State, testified as to giving this Britton two marked one dollar bills with the request that he provide them with some liquor. He went into the place of business of the appellees. In about five minutes he returned with a bottle which was plainly marked as a wine bottle, but the contents of which on a test clearly were whiskey. They returned into this place of business with this man Britton. He pointed out the appellee Ross as the man who had sold him the liquor. Without Britton’s testimony the evidence of the officers on this point was competent. The statements were made in the presence of Ross, one of the permit holders. He did not deny that they were made. He simply denied the sale. Thereafter, when the cash register was opened, one of these marked bills bearing the registered number identified by the officer was found.

Certainly that evidence was “probative and substantial.”

It follows that the judgment of the Court of Common Pleas must be and will be reversed, and the order of the Board of Liquor Control affirmed.

MONTGOMERY, PJ, NICHOLS and GRIFFITH, JJ, concur.


text:
    TIRE INDUSTRIES, INC., Plaintiff-Appellant, v. SCOTT, State Fire Marshal, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5115.
    Decided February 24, 1955.
    Richard Sophrin, Alan D. Sophrin, of Counsel, Cuyahoga Falls, for plaintiff^appellant.
    ' Hon. C: William O’Neill, Atty Geni., Earl N. Merwin, Asst. Atty Geni,, Columbus,- fordefendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court affirming a finding by the State- Fire -Marshal who after a full and complete hearing determined that the order issued by him on June 29, 1953, was properly issued. The pertinent parts of this order provide:

“I find the following conditions to exist in the above mentioned premises: Rubber tires stacked against fence; fence leaning over toward B. & O. Railroad; fence which is only six feet from track, a definite hazard; tires not being stacked in pyramid stack as requested, with alley or aisle between stacks; previously made aisles now filled in with tires.

“Therefore, by reason of the premises and pursuant to the authority vested in me by virtue of my office under §§834, 835, 836, 836-1, 836-2, and 837, inclusive, GC, you are hereby ordered within thirty (30) days from date of service of this order to make, the following corrections: All tires shall be removed from premises; the use of the lot for a storage place for old tires shall be discontinued.”

Upon appeal to the Common Pleas Court, Judge Harter in a well considered opinion found that the order was supported by reliable, substantial and probative evidence and was in accordance with law. We are in full accord with his legal conclusions and the reasons assigned therein for the same. We shall, however, give further consideration to the argument of counsel for the appellant, that even though an order could have been properly issued, it was too severe, arbitrary and unreasonable and constituted an abuse of discretion; that under §835 GC the Marshal had a discretion to (1) order the materials removed, or (2) order the conditions remedied. Clearly, he had such a discretion; hence the question presented is whether there was an abuse of the same.

In the case of Farah v. Callen, 67 Abs 142, this Court affirmed an order of the Common Pleas Court reversing an order of the State Fire Marshal directing the appellee to tear down and remove certain buildings from his premises, because said order constituted an abuse of discretion. In this case, as in the case at bar, the evidence clearly disclosed that the conditions were such that they could be remedied to meet all safety requirements. The record discloses that the order appealed from is the first written order served on the appellant with reference to the premises under consideration.

We are therefore of the opinion that the order which is the subject of this appeal, should be modified by granting to the appellant 60 days in which to comply with specific requirements to be set up by the Fire Marshal in accordance with his findings and upon which he based the order from which the appeal was prosecuted to the Common Pleas Court. Upon failure of appellant to observe the order as modified “all tires shall be removed from the premises; the use of the lot for a storage place for old tires shall be discontinued.”

The judgment, as modified, will be affirmed.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


text:
    SHIVELY et, Plaintiffs, v. SMITH et, Defendants.
    Common Pleas Court, Franklin County.
    No. 190463.
    Decided September 27, 1954.

      John F. Seidel, David E. Evans, Columbus, for plaintiffs.
    Richard Heer Oman, Herbert F. Peterson, Columbus, for defendants.
   OPINION

By BARTLETT, J.

1. DEMURRER TO PETITION OVERRULED.

2. MOTION TO AMEND AT BAR SUSTAINED.

Demurrer to petition contesting Will. Counsel for defendants state that petition does not attack the validity of the will, nor even aver the writing produced and probated, is the last will of testatrix.

After setting up the paper writing purporting to be the last will of Mary Shively was admitted to probate and record, the petition avers: “Plaintiffs say that said written instrument, purporting to be the last Will and Testament of Mary Shively, was not her Last Will and Testament.” (Emphasis ours.) Whether counsel for defendants overlooked this averment or desire to indulge in refined reasoning as to the difference between the use of the word “was” instead of “is,” does not merit much consideration. The Court is of the opinion the petition states a cause of action on demurrer thereto.

“A petition is not open to demurrer merely because the language used therein is indefinite, uncertain, or vague;” 31 O. Jur. Pleading, Sec. 130, p. 688,

“If the pleadings in the petition state no such cause of action, the demurrer should be sustained, but if it, with every inference reasonably deductible therefrom, does constitute a cause of action, then the demurrer should be overruled;”

“* * *, the court is required to follow the code requiring pleadings to be construed favorably to the pleader, and to give to the language of the petition a liberal construction in favor of the plaintiff to sustain his pleading;” Ibid, Sec. 142, p 700.

“2. The issue to be made up and tried in such actions (the contest of a will), having been prescribed by statute, cannot be varied or restricted by averments in the pleadings, but must be the same, whether made up by the pleadings, or by an order on the journal of the court, viz: ‘whether the writing produced is the last will or codicil of the testator, or not.’ ” Dew et al. v. Reid, et al., 52 Oh St 519; Kilpatrick v. Humphreys, 8 N. P. 245.

“If the petition (in action to contest will) sufficiently directs the attention of the court to the fact that the validity of the will is challenged, and that the proper parties are before it, the court is to submit that phase of the litigation to the jury, * *

Motion to amend petition on its face sustained in full. Plaintiffs are within their rights in so doing. Sec. 2309.56 R. C.;. Morton v. Fast, 159 Oh St 380. The Court would suggest that the first amendment should be after the word “Testament in the third, rather than the fourth line on page four of the petition, in the interest of clarity.”


author: By HORNBECK, PJ.

text:
    HADDIX ROAD THEATER CO., INC., Plaintiff-Appellee, v. MIDWEST SPORTSERVICE, INC., Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 123.
    Decided January 6, 1953.
    Wead & Aultman, Xenia, Fred M. Kerr, Dayton, for plaintiff-appellee. Robert H. Wead and Fred M. Kerr present.'
    Pickrel, Schaeffer & Ebeling, Dayton, Miller & -Finney, Sidney Pfeiffer, for defendant-appellant. J. A. Finney and Sidney -Pfeiffer present.
   OPINION

By HORNBECK, PJ.

- This is a suit to cancel a sub-lease between the parties wherein the plaintiff is the lessor and the defendant is the lessee.- -The sub-lease or agreement which is under consideration on this appeal granted to the defendant the food and drink concession in . plaintiff’s theater.

The petition avers that three conditions of the contract were breached by the defendant.

(1) In operating the food and soft drink concession to provide “neatly attired, competent help and properly supervised.” ,

(2) To furnish all necessary equipment and fixtures to operate said food and drink vending concession in an efficient manner.

(3) To pay plaintiff as rental 22% of gross sales, with stated exceptions, * *.

The second cause of action is for an injunction and the third cause of action is for damages for use and occupancy of the premises. The first and second causes of action only are involved in this appeal. The answer of defendant is substantially a denial of any of the claimed violations of the contract, an admission of an amount due the plaintiff under the rental terms of the contract and an avoidance of compliance because of an arrangement whereby defendant was to make a loan to the plaintiff.

The cross-petition was predicated upon an alleged breach of the contract by the defendant in that in contravention of the terms of the agreement it had set up and was operating its own food and drink concession at the theater and the prayer on the cross-petition is for specific performance and observance by the plaintiff of the sub-lease and rental agreement.

We have carefully considered the facts developed respecting the alleged breaches of the contract. We cannot accept the contention of plaintiff that the failure to provide proper food was a failure to furnish “necessary equipment and fixtures to operate the food and drink vending concession.” Equipment, in our opinion, relates only to that which is provided and used in the preparation, storage, handling and serving of food and drink as distinguished from food and drink themselves. However, there is proof in the record that the defendant had not prior to July, 1950 provided the equipment which it had agreed to supply.

We find -that the plaintiff has made proof by the requisite degree of a breach of the contract in the particulars averred.

But it is asserted that the plaintiff did not conform to the requirements of the contract as to notice as to the attire and supervision of the employees and of an intention to terminate it as provided in the 11th paragraph thereof. In addition to the provisions of the contract for a written notice of a purpose to terminate there is also a provision in paragraph 5b for a notice as follows:

“Concessionaire agrees to have all concession operations carried on by neatly attired competent help and properly supervised and should any employee of Concessionaire be unsatisfactory to Operator, Concessionaire agrees upon due notice from Operator to discharge such employee.”

As we interpret this contract the notice contemplated in 5b has reference only to employees who are unsatisfactory to the operator. It does not require notice if help is not neatly attired and properly supervised.

On July 19, 1950, succeeding several oral objections made to defendant by plaintiff, these objections were put in written form and made the subject of a letter to Mr. Jacobs of the defendant company. In this letter are set out in detail the particulars in which it was then claimed the defendant had breached its contract which failure is made the subject of the averments of the petition.

There is indeed some question if this written notice to the company carried an express intention on the part of the plaintiff to terminate the contract based upon its rights thereunder. However, in view of the controversy which had gone on between the representatives of the plaintiff and of the defendant it may be so construed. The purpose to terminate the contract is inferable from the letter inasmuch as it indicated a purpose on the part of the plaintiff to carry on the operation of the concession by itself. It further appears that the defendant made no preparation on the ground to operate the concession in the season of 1951. But on December 15, 1950, in a letter to defendant from counsel for plaintiff there is specifically set out the default in the payment of rent in conjunction with the defaults theretofore called to the attention of defendant and an express notification of a purpose to terminate the contract.

Although there is some ambiguity in the terms of the contract as to the time when the rental was due it cannot be urged that it was not due and payable on and after December 15, 1950 when the letter of that date was written. There was no offer to pay the rent past due until after this suit was instituted in March, 1951, and there is no sufficient explanation in the record to excuse such default.

The judgment in this Court will be the same as in the Common Pleas Court.

WISEMAN and MILLER, JJ, concur.


author: By RANDALL, J.

text:
    MIECZNIKOWSKI, d. b. a. WADE PARK BOWLING ALLEY, Appellant, v. STATE et, Appellees.
    Common Pleas Court, Franklin County.
    No. 184134.
    Decided July 30, 1952.

      John Butler, Cleveland, for appellant.
    Hon. C. William O’Neill, Atty Geni., L. P. Zwick, Asst. Atty Geni., Columbus, for appellee.
   OPINION

By RANDALL, J.

This case comes to us on an appeal from the order of the Board of Liquor Control, revoking the D-l and D-2 permits of the appellant. The charges preferred against appellant are as follows:

“That on August 24, 25, 26, 1951, you and/or your agent or employee did have, keep, possess and did sell on your permit premises spirituous liquor, to-wit, whiskey, and you were not then and there the holder of a permit authorizing the possession or sale of whiskey on your permit premises — in violation of the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.”

Upon consideration of an appeal from the order of the Department of Liquor Control the Board of Liquor Control made the following findings and order:

“This cause came on to be heard after due notice to Marion Miecznikowski dba Wade Park Bowling Alley, 8107 Wade Park Ave., Cleveland 3 Cuyahoga County, Ohio, as required by law upon the order of the Director of the Department of Liquor Control to show cause why Class D-l and D-2 permits Certificate No. 15668 - heretofore issued to the said Marion Miecznikowski dba Wade Park Bowling Alley by the Department of Liquor Control should not be revoked for violation by the said permit holder of the provisions of §6064-54 GC and Regulation No. 55 of the Ohio Board of Liquor Control.

“The Board finds from the evidence that on August 24, 25, 26, 1951, the said permit holder and/or his agent or employee had, kept, possessed and sold on the said permit premises spirituous liquor, to-wit, whiskey, not then and there being the holder of a proper permit issued by the Ohio Department of Liquor Control which authorized the possession and/or sale of spirituous liquor on said permit premises; in violation of provisions of the Ohio Liquor Control Act and regulations of the Ohio Board of Liquor Control.

“It is therefore ordered and adjudged that Class D-l and D-2 permits Certificate No. 15668 be and the same are revoked effective November 19, 1951.”

We have read and considered the transcript of the evidence before the Board and in our opinion there can be no question about the correctness of the finding of the Board that the permit holder violated Regulation 55 of the Board by having in his possession spirituous liquors which are prohibited by said Regulation.

That Regulation seems to prevent the possession of spirituous liquors other than the ones enumerated in said section by the holders of D-l and D-2 permits for any purpose whatsoever. Regulation 55 provides as follows:

“No holder of a permit authorizing only the sale of beer, malt liquors, malt beverages or wine shall have, keep or possess any spirituous liquor upon said permit premises; nor allow any employee, or patron or other persons so to do, for personal use, or for any other purpose whatsoever.”

In considering the charge against the appellant that he sold spirituous liquors not then and there being the holder of a proper permit which authorized such sale, we are not called upon to weigh the evidence but to determine first whether there was reliable, probative and substantial evidence supporting the order of the Board of Liquor Control, and whether or not the Board of Liquor Control was guilty of an abuse of discretion.

Upon consideration of the direct testimony and reasonable and logical inferences which may be made from the facts and circumstances developed by the evidence, we find that there was reliable, probative and substantial evidence before the Board tending to support its ruling.

With reference to the penalty imposed by the Board, we cannot say that the gravity of the penalty is in and of itself an evidence of abuse of discretion since the power to determine whether suspension or revocation shall be ordered is, by statute, within the discretion of the Board.

The findings and order of the Board will be affirmed and this order will be certified to the Board.


author: By WISEMAN, J.:

text:
    RELYEA, Plaintiff-Appellee, v. NEAL, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 497.
    Decided March 3, 1955.
    William M. Dixon, Troy,,.for plaintiff-appellee.
    Leo H. Faust, Troy, for defendant-appellant.
   OPINION

By WISEMAN, J.:

This is an appeal on questions of law from a judgment rendered by the Common Pleas Court of Miami County on a verdict of a jury rendered in favor of the plaintiff in the amount of $515.00.

Plaintiff’s action was for the recovery of commissions alleged to be due from the defendant under a verbal contract of employment whereby the plaintiff was employed to manage a dairy farm owned by the defendant. The terms of the contract were made an issue by the pleadings, the plaintiff claiming that in addition to a monthly salary, he was to receive 25% of the profits, and the defendant claiming that plaintiff was to receive a monthly salary and a bonus in addition, the amount to be left to the discretion of the defendant. The evidence on this issue was conflicting. The terms of the employment contract was a jury question.

We do not deem it necessary to recite in detail all the conflicting pieces of evidence on the question as to whether there was a profit from the farm, or the different accounting methods used by the plaintiff and the defendant and the two expert accountants called as witnesses. Whether or not there was a profit, and, if any, how much profit was made, and the proper method of accounting in arriving at the profit, was a jury question and was properly submitted to the jury under proper instructions. In our opinion the court properly overruled defendant’s motion for directed verdict.

The defendant contends that the court erred in admiting evidence over the objection of the defendant. The wife of the plaintiff testified that she, the plaintiff, and counsel for the plaintiff, together computed the profit made on the farm from the monthly reports furnished the plaintiff, which were prepared by the defendant’s bookkeeper. On direct examination the witness was asked whether there was not a specific amount “due” the plaintiff for the year 1948, and questions of a similar import were asked relative to the years 1947 and 1949. To these questions the witness answered “Yes, sir,” “Yes,” and “That’s right.” The questions were not objected to on the ground they were leading, but on the ground that the witness was not an expert, that the testimony was only an expression of an opinion, and that the questions called for legal conclusions. The first two grounds of objection are not valid. Taking the questions and answers together it may be said that they were in the nature of legal conclusions. It was for the jury to determine the amount “due,” under proper instructions. Defendant claims that such evidence was prejudicial to his case. Later, counsel for plaintiff took the witness stand and gave similar testimony as to the computations made by them. He elaborated on the method of computation and gave definite figures as to income, expenses, and profit, for 1947, 1948 and 1949, and stated that the difference between 25% of the profit and the amount received by the plaintiff was $898.46, which was the same amount testified to by the wife. The testimony of counsel for the plaintiff was given without objection. In view of the testimony given by counsel for the plaintiff, which was more intelligently presented, we cannot say that the questions put to and answers given by plaintiff’s wife were prejudicially erroneous.

We have carefully examined the entire record with a view of determining whether the verdict was against the manifest weight of the evidence, and for other claimed errors. We are of the opinion that the case was as well and as fairly tried as the nature of the issues presented would permit. We do not find the verdict to be against the manifest weight of the evidence, nor contrary to law. The motion for new trial was properly overruled.

Finding no error in the record prejudicial to the rights of the appellant the judgment is affirmed.

MILLER, PJ, HORNBECK, J, concur.


author: Per CURIAM:

text:
    DIETER et, Plaintiffs-Appellees, v. FREEMAN et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22747.
    Decided October 26, 1953.
    Boer, Mierke, Thomas, McClelland & Handy, Cleveland, for plaintiffsappallees.
    Roth & Pollack, Cleveland, for defendants-appellants.
   OPINION

Per CURIAM:

Plaintiffs paid $75.00 per month for eleven months as rental for an apartment suite listed at $45.00 a month unfurnished by O. P. A., and was awarded triple damages plus $100.00 attorney fees by the Cleveland Municipal Court.

Uncontradieted evidence in the record discloses that the defendants took steps to reclassify as furnished the suite in question. However, when the inspector for O. P. A. visited the premises on an “inspection of furnished suites” the suite had no furniture in it because of it being redecorated and the inspector refused to establish a furnished suite rental value on it despite the fact that furniture for it was stored in the basement. A follow-up inspection was not made by O. P. A. A letter was signed by the plaintiffs, before moving in, to the effect that they wished to use their own furniture by preference although “furniture to furnish this suite is available,” which tends to bear out defendants’ claim that the suite was offered furnished to plaintiffs and that they insisted on using then’ own furniture. O. P. A. rules consider such circumstances the equivalent of renting a furnished suite.

In our opinion these facts do not warrant a conclusion, as found by the trial court, that “the violation * * * was the result of failure to take practical precaution against the violation.” Section 1895, U. S. Code R Title 50.

For the foregoing reasons we believe that justice requires that the judgment be modified to the mere overcharge plus attorney fees of $100.00.

Judgment modified to read $430.00 and costs. Exceptions noted. Order See Journal.

HURD, PJ, KOVACHY, J, SKEEL, J, concur.


text:
    NORMAN, Plaintiff-Appellee, v. KEMP, Defendant-Appellant.
    Ohio Appeals, Second District, Greene County.
    No. 526.
    Decided April 20, 1953.

      J. H. Patricoff, Dayton, for plaintiff-appellee.
    Schlafman & Elliott, Fairborn, for defendant-appellant.
   OPINION

By THE COURT:

This is a law and fact appeal from the Common Pleas Court of Greene County. The case was submitted to this Court on the record taken below, together with additional testimony taken by a Special Master Commissioner appointed by this Court. The record taken before the Master shows that the issues were virtually re-tried.

The case grows out of a sale of a tract of land in Greene County. The evidence shows that on October 14th, 1950, the plaintiff agreed to buy and the defendant agreed to sell: 2 acres of land on Grange Hall Road, at least 150 feet frontage; at $400.00 per acre. A memorandum signed by both parties contained this provision: “The 2 acre tract includes 2 acres from Road back to woods.” The defendant granted plaintiff permission to move a house onto the land before the deal was consummated. At the time the house was moved a dispute arose as to the location of the boundary lines of the tract. The plaintiff was required to move the house to the north off the adjacent tract, which was owned by defendant’s daughter. Later plaintiff was required to cut a portion off the house in order to keep within the boundary lines of the tract. The tract was surveyed and it is conceded that a tract of land with 150 feet frontage extending from Grange Hall Road to the woods could contain approximately five acres; that a 2 acre tract extending from the road to the woods would have a frontage of only 67.2 feet; and that a 2 acre tract with 150 feet frontage would extend approximately 580.8 feet from the road. It is obvious that a tract with 150 feet frontage, extending from the road to the woods, would contain more than 2 acres, to-wit: 5 acres, and that a tract of 2 acres extending from the road to the woods would only have a frontage of 67.2 feet.

The defendant tendered plaintiff a deed for two acres with a frontage of 67.2 feet, which plaintiff rejected. The plaintiff offered to pay for two acres with 150 feet frontage, which defendant refused. Plaintiff brings this action for specific performance.

Manifestly there cannot be a strict compliance with all the terms of the memorandum of sale. To attempt to determine the issues presented on the theory that there had been a mutual mistake of fact would not settle the controversy between the parties. We are of the opinion that the issues can be resolved on the basis of the oral testimony taken in the court below and before the Master. There are certain facts upon which the parties agree. The tract was to front on the Grange Hall Road and south east of the farm of George F. Kemp and South end of the farm. The location of the tract is sufficiently definite to permit the transaction to be enforced in a court of equity. The parties, agree that the price was to be $£00.00 per-acre. The memorandum calls for a down payment of $50.00, which was paid within a few hours after- the memorandum was signed. The memorandum also requires the payment of the balance of $750.00 upon the delivery of the deed. Thus it appears, both in the memorandum and in the testimony taken in the Common Pleas Court, that the parties agreed on a tract of two acres. The son of the defendant drafted the memorandum for the defendant in the presence of both plaintiff and the defendant, and engaged in the conversation leading up to the signing of the memorandum. He stated, in the second hearing before the Master, that the acreage was indefinite; that plaintiff was given the option to take two acres, three acres or as much as five acres, at the rate of $400.00 per acre. He gave this as a reason for the provision calling for 150 feet frontage. This testimony is not supported by any other witness. The testimony taken in its entirety supports the conclusion that the plaintiff expected to get a frontage of 150 feet, no more and no less, and his conduct at all times conformed thereto; that- defendant, after the purchase, made statements to the house movers, who appeared to be disinterested witnesses that the plaintiff’s''tract extended to the creek, which would allow a frontage of approximately 150 feet.

The defendant and his son, while on the witness stand", were evasive, hostile and at times contradicted themselves to such an extent that the trial judge was required to admonish them to answer the questions put by counsel, and commented on the contradictions in the testimony.

At the time of the sale the defendant owned a 20 acre tract of land immediately to the north and adjacent to the tract sold to the plaintiff. Several months thereafter he sold the tract adjacent,¡to-plaintiff’s tract to Thompson. There was left between the Thompson tract and the land owned by defendant’s daughter a tract of land consisting of two acres, extending from the road to the woods, a distance , of Í296.9 feet, with a frontage of 67.2 feet on the road.' It' is this tract onto which plaintiff moved his house, claiming, however, two acres of‘land with 150 feet frontage. Thus it appears that if plaintiff is not required to take the land to the woods, the defendant will own to the rear of plaintiff’s tract and nearer the woods a small tract to which he has no outlet. The defendant now claims this circumstance is strong evidence why he would not have consented to sell a tract of land to the plaintiff unless it did extend to the woods. At the trial in the Common Pleas Court the defendant claimed the tract to the north of plaintiff’s tract had been bargained for before the sale was made to the plaintiff, but at the hearing before the Master the evidence clearly shows that the transaction with Thompson took place after the sale to the plaintiff, and after plaintiff brought this action. Thus it clearly appears that the defendant isolated this small tract by "his own act, and should not now be heard to complain.

The provisions of the contract with respect to the acreage and frontage are definite and specific and should control over less definite and general provisions.

In working out the equities between the parties the trial court found that the. plaintiff was entitled to 2 acres with 150 feet frontage, which extended 580.8 feet in depth, but that since the defendant had put it beyond his power to convey a tract with 150 feet frontage the plaintiff was entitled to a decree and conveyance of a tract with the remaining frontage, to-wit: 67.2 feet, and to a depth of 580.8 feet. The trial court further found that for said tract the plaintiff should pay the defendant at the rate of $400.00 per acre, the sum of $358.40, less a credit of $50.00 which had already been paid, leaving a balance due the defendant in the amount of $308.40. No damages were allowed to the plaintiff. The court further ordered that unless the defendant deliver a deed to the plaintiff for such tract, specifically describing the same, within three days, the court’s decree should operate as such conveyance. We find this order to be equitable and just, and will enter a like decree.

An entry may be drawn accordingly.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.