Newberger v. Hubbell , 1939 Ohio Misc. LEXIS 1013 ( 1939 )

OPINION

By WASHBURN, PJ.

The parties will be referred to as they appeared in the trial court, wherein plaintiff, Edward Newberger, brought suit against defendant, Benjamin S. Hubbell, to recover damages caused to the automobile of plaintiff when it came into collision with the automobile of the defendant.

The defendant answered, admitting the collision but denying neglect on his part, and, as a second defense, plead that after the collision and before this action was begun “the plaintiff,, in consideration of the delivery of certain papers and drafts by said insurance company, discharged the defendant’s insured from the damages arising and accruing out of the accident, which is set forth in the plaintiff’s petition.”

In reply to said last named defense, the plaintiff admitted that “a certain release was signed by him and a certain draft was issued by the Ohio Casualty Insurance Co.,” and alleged that “the draft was not accepted, has never been cashed and. there has been no consideration for said release, and settlement referred to in defendant’s answer has not been consummated.”

A jury being waived, the cause was submitted to the court “upon the pleadings and the evidence, and stipulation of facts,” and the court found on the issues joined in favor of the plaintiff and against the. defendant, and judgment was entered upon such finding.

The cause is before this court upon an appeal on questions of law, but there is no bill of exceptions showing the evidence of - the “stipulation of facts” mentioned in the judgment entry by the court. The only claim of error made is that, upon the answer and reply in reference to the accord and satisfaction mentioned, the ■ judgment of the court should have been for the defendant.

That issue was submitted to the court upon the evidence and stipulations of fact, and, from aught that appears in the record, the evidence and statement of. facts in reference to said issue fully justified the conclusion reached by the court in reference to said issue; and while the pleadings in reference to that issue are not as perfect as they might have been, the defendant is not now, after the submission of said cause to the court, and in the absence of a record showing the evidence and stipulation of facts upon which the court determined that issue, entitled to a judgment in his favor upon the pleadings in reference to said issue.

Judgment affirmed.

DOYLE, J. & STEVENS, J., concur.