Steele v. Segal , 1931 Ohio Misc. LEXIS 1079 ( 1931 )

MAUCK, PJ.

• There would seem to be no reasonable difference of opinion that the plaintiffs had pleaded an equitable cause of action were it not for the fact that they have attached to their petition what they claim to be a written contract between the defendant and the party to whom he sold the stock. The defendant now claims that the plaintiffs’ right of recovery, if any, is evidenced by this contract and that they have a plain action at law for the difference between the amount realized by them and the amount' which under this contract the defendant sold the stock for. This argumerit is unsound. The contract attached to the pleading is no part of the pleading and there is no authority for its attachment. It may or may not be competent evidence of the defendant’s dealings with his vendee. Even if it be competent evidence for that purpose binding upon Segal it is by no means binding upon the plaintiffs, who are not parties thereto and are at liberty to show that the defendant received more or less from his vendee than the amount stipulated for in this contract. Anyhow the agreement attached as an exhibit is no part of the second amended petition.' That pleading sets up an equitable action.

The motion to dismiss the appeal is overruled.

-MIDDLETON and BLOSSER, JJ, concur.