Walter v. Ross , 49 Ohio App. 203 ( 1934 )

This cause comes into this court upon petition in error from the Common Pleas Court of Richland county. The parties appear herein in the reverse order of that held in the court below, in which court Abe M. Ross brought an action to recover from Oscar Walter and Russell F. Wallace the balance of the consideration arising from the sale of a pool room known as The Mecca Pool Room, located at 7 North Walnut street, Mansfield, Ohio.

The plaintiff in his petition claims that on the 15th day of November, 1932, he entered into an agreement with the defendants by the terms of which he agreed to sell to the defendants, and the defendants agreed to buy, the stock, fixtures and good will of the said pool room, which said fixtures were listed at an agreed price of $1800; that he further agreed to sell to the defendants all of the stock at the appraised value of $242. He then alleges payment of $852, and further alleges that the defendants agreed to pay the balance of the purchase price within ten days from said date. Plaintiff also alleges that he put the defendants in possession, that they refused to pay the balance of $1190, and plaintiff therefore prayed for judgment in that sum. The defendants filed an amended answer in which they admitted entering into a contract with the plaintiff, that in addition to above property to be transferred to the defendants there was also to be transferred and conveyed to defendants, under the terms of said agreement, a certain leasehold of the premises then occupied for the purpose of said business, and also a certain sum of $1200, then on deposit in the Citizens National Bank of Mansfield, which sum had been deposited by the plaintiff to guarantee the completion of said lease.

A number of grounds of error are assigned in the petition in error, but only two grounds are stressed in the brief and in oral argument. It is claimed, first, that the finding and judgment of the court below are against the manifest weight of the evidence. With this contention we can not agree, as the record before us shows ample evidence to justify the verdict rendered herein. We find no error in that regard.

The second claimed ground of error is that the court refused to give special instructions requested by the plaintiff in error before argument.

Section 11420-1, General Code, provides in part:

"When the evidence is concluded, either party may present written instructions to the court on matters of law, and request them to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced."

"Section 11447 [now Section 11420-1], General Code, confers upon parties to civil actions the absolute right to have instructions, when presented in writing, given to the jury before argument if so requested, provided the same be a correct statement of the law, pertinent toone or more issues and applicable to evidence adduced in thecase." (Italics ours.) Washington Fidelity National Ins. Co. v.Herbert, 125 Ohio St. 591, 183 N.E. 537.

The record discloses that the defendants below presented to the court some seven separate and distinct requests to charge before argument. Complaint is especially made of request number seven — because of the failure of the court to give that request before argument. The request is as follows:

"Plaintiff is suing on a contract of sale and I charge you that the plaintiff must establish by preponderance of the evidence the existence of a contract, that is, the minds of plaintiff and the defendants met upon what was to be sold and the price to be paid therefor, and if you find from the evidence that the plaintiff has failed to establish by preponderance of the evidence such contract, that is, a meeting of the minds of both plaintiff and defendants, as to all of the terms of such contract, then in such event the plaintiff is not entitled to recover against the defendants in this action."

We are of the opinion that it was not error in the court below to refuse said request, for the reason that the only issue in the case was raised by the plaintiffs in error in their amended answer and cross-petition. After admitting purchase of the stock, fixtures and good-will of the pool room from the defendant in error for the agreed price of $1,800 for the fixtures, and $242 for the stock and merchandise, and after admitting that they paid the defendant in error the sum of $852 on the purchase price and took and retained possession of the property and the premises at all times, and agreed to pay the balance of $1,190 due on the purchase price within ten days, as set forth in the petition, they alleged in their amended answer and cross-petition that in addition to the property transferred to them under the contract there was also to be transferred and conveyed a certain leasehold of the premises wherein the business was conducted, and a certain sum of $1,200 which had been deposited by the defendant in error with the Citizens National Bank of Mansfield, Ohio. The plaintiffs in error in their cross-petition prayed for damages because of the failure of the defendant in error to transfer such lease and deposit to them, so that the only issue of fact raised in this case was whether or not the defendant in error agreed to transfer his deposit of $1,200 in the Citizens National Bank to the plaintiffs in error, and this issue was presented to the jury for its determination, and the jury found on this issue in favor of the defendant in error.

We, therefore, are of the opinion that the assignments of error urged by plaintiffs in error herein are not well taken, and it therefore follows that the judgment of the lower court will be, and the same hereby is, affirmed.

Judgment affirmed.

SHERICK, P.J., and MONTGOMERY, J., concur.