Bates v. Firestone , 1 Ohio Law. Abs. 817 ( 1923 )

PARDIDE, J.

Epitomized Opinion

This is an action to recover from Firestone $6,000 upon a written subscription made by him for 30 shares each of common and preferred of the Portage Rubber Co. Firestone alleged that he withdrew his subscription before it was accepted, and also alleged that the subscription was obtained by the fraud and misrepresentation of the company. The jury returned a verdict for defendant. Error is assigned on the ground that the court refused to charge as requested by the trustee, that Firestone must prove the alleged fraud and misrepresentation by clear and convincing evidence, also that the verdict is manifestly against the weight of the evidence. In answer thereto Firestone claims that the trustee is not entitled to a review because an exception was not taken to the entry of the judgment in the lower court; that the company failed to comply with the Blue Sky Law; and that the subscription was conditional, and he withdrew it before it was accepted by the company. The Court of Appeals, in reversing the judgment held:

1. It is not necessary to have an exception taken to the entry of the judgment in the lower court, 26 OS. 372, 12 OS. 402.

2. As to the Blue Sky Law, Firestone did not object to the petition by demurrer or answer, and as the petition stated a good cause of action, Firestone waived his right to object at the trial, 2 CC. n. s. 358, 25 0CC. 482, 91 OS. 212.

3. When the corporation made a written offer to Firestone to subscribe to the new issue of stock, this was an offer which was accepted by Firestone's subscription, and the contract was complete before Firestone withdrew his acceptance.

4. The trial court was right in refusing to charge that Firestone must prove fraud and misrepresentation by clear and convincing evidence-proof by preponderance of the evidence is sufficient, 26 OS. 2, 73 05. 275.

5 .The verdict of the jury is, however, manifestly against the weight of the evidence.