Passoni v. Battisti , 1923 Ohio Misc. LEXIS 1439 ( 1923 )

HOUCK, J."

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in the Common Pleas, wherein Emilio and Mari Batisti were platintiffs and Edward Passoni was defendant. The petition alleged that Passoni as agent of the Tuscora Rubber Co., sold plaintiffs stock in said company for $1200 at the same time, agreeing that if at any time plaintiffs became dissatisfied with theiij pulrchase, he would himself buy the stock from them at the price paid them, and that thereafter, plaintiffs did become dissatisfied with the purchase and notified defendant and demanded the purchase price of $1200 and that defendant refused their demand.

The trial court charged the jury that in. order to recover the plaintiffs must prove that the defendant made the agreement as alleged and that plaintiffs after purchasing the stock tendered it to defendant with a demand for the money and that defendant refused the stock and to pay the money. The jury returned a verdict for plaintiffs for $1200 and Passoni prosecuted error on the ground that the verdict was not responsive to law as given by the trial judge. Held:

If this action were one for damagesj a tender back of stock would be necessary but this action is based upon defendant’s agreement to return to plaintiffs the money they had paid anr in such ease a tender was not raised in the pleadings and the part of the charge relating to a tender was superfluous 'and not prejudicial to defendant. Judgment affirmed.