Weinstein v. Newman , 89 Ohio App. 301 ( 1951 )

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton County rendered in conformity to a verdict for the plaintiff.

In the original petition, the plaintiff stated that he had performed certain services for defendant as a licensed real estate agent at the request of the defendant, and that he was entitled to be compensated for the reasonable value thereof. The answer was, in effect, a general denial with an added defense of waiver of compensation. A reply was filed by plaintiff denying the new matter set up in the answer.

The case proceeded to trial upon such pleadings. In the examination of a witness for plaintiff, it was sought to be proved that the defendant had specifically promised to pay such compensation. The defendant interposed his objection, claiming a variance in the proof and issues made by the pleadings, upon which the plaintiff asked leave to amend his petition to conform to such proof. This request was granted. The defendant then asserted that he was not prepared to meet the new cause of action stated in the amended petition and asked for a continuance. The requested continuance was granted and defendant was given leave to file an answer to the amended petition.

No reply was filed to the answer to the amended petition, in which answer the defendant denied that he had specifically promised to pay such real estate commission and again pleaded waiver. The trial then proceeded upon these amended pleadings.

The issues of fact thus created by the new pleadings were whether the defendant had requested plaintiff to perform certain services as a real estate agent; whether plaintiff had performed such services; whether defendant had specifically promised plaintiff to pay him the reasonable value thereof and had failed and refused to do so; and whether the plaintiff had waived compensation for such services.

Substantial evidence was introduced tending to sustain the contentions of both plaintiff and defendant.

The court gave the following special instruction:

"I charge you that if you find, by a preponderance of the evidence, that the plaintiff, Maurice L. Weinstein, was orally requested by the defendant, Jacob Newman, to procure certain real estate, and if you find that he thereafter did procure said property, then you must find for the plaintiff, Maurice L. Weinstein, in an amount that will adequately and reasonably compensate him for the services he rendered the defendant.

"In the absence of a specific agreement to the contrary, the law implies an agreement to pay what the services are reasonably worth."

In the general charge the court stated:

"The issues in this case are made up of the pleadings, an amended petition, an amended answer, and a reply, which should be brought to your attention. The reply in this instance was filed to the original answer and was not filed to the amended answer. Consequently Mr. Stewart in his remarks to you was right when he said there was no reply filed to the amended answer. Mr. Dennis has pointed out to the court just before I began this charge that this reply would have been refiled had he thought to refile that reply, so that had it been refiled, it would have completed the issue.

"As you now have it before you, you have an amended petition and an amended answer. In the amended petition the plaintiff here asks for the reasonable amount of his services involved in effecting a certain real estate deal, and he charges that in the pursuance of that deal a $1,000 cashier's check was posted with the prospective purchaser and he alleges further that he effected what his business was, and that was, he procured a purchaser and that he transferred to that purchaser a $1,000 check and that the deal was consummated as a result thereof, and that as a result of that particular consummated deal he is entitled to the reasonable amount of his services and he says that the reasonable amount of his services is $1,400.

"An answer has been filed on behalf of Mr. Newman, in which this procedure is denied and, furthermore, it is said that this particular deal that went through was not due to Mr. Weinstein's activities, and, furthermore, his answer says in effect that there was a certain understanding arrived at at a later time, in which the plaintiff agreed to waive whatever claim he might have against the defendant as a result of this deal.

"What you have before you is a simple issue of deciding just this: If you find in this case the plaintiff has proved by a preponderance of the evidence his allegations, you find for the plaintiff. If you find that he has not proved by a preponderance of the evidence all of his allegations, you will find for the defendant. In other words, if you find that the plaintiff in his capacity as the real estate dealer did procure a purchaser for Mr. Newman, that he did transfer to that purchaser a $1,000 check, and if you find further that that purchaser accepted the check and the deal went through as the result of the professional activities of Mr. Weinstein, then you will find for the plaintiff. On the other hand, if you find that these particular allegations made by Mr. Weinstein are not true, that Mr. Weinstein did not procure the purchaser, and that he was not the procuring cause of this deal going through, then you will find for the defendant.

"Furthermore, if you find Mr. Weinstein did act as the procuring cause and did effect this particular sale that went through and did therefore merit a reasonable amount of money for his services, but at a subsequent date waived said claim for services, then you will find for the defendant. If, on the other hand, you find Mr. Weinstein effectively consummated this deal and, therefore, if you find that he had coming to him a reasonable amount of compensation for his services, and if you further find that at a later date he did not waive any claim for these services, then of course you will find again for the plaintiff."

It is thus apparent that the trial court failed completely to present to the jury the case made by the pleadings and evidence, and, therefore, no verdict rendered by the jury could be responsive to the real issues in the case. A judgment rendered in conformity to such verdict must, therefore, be set aside, as not being responsive to the issues produced by the pleadings and evidence. Aetna Ins. Co. v. Reed, 33 Ohio St. 283; Beck,Trustee, v. Beagle, 28 Ohio App. 508, 162 N.E. 810.

The pleadings and evidence made a definite case upon a special promise or what was formerly known at common law as special assumpsit. The case was presented to the jury upon the theory of implied promise, or what was at common law known as indebitatus assumpsit. The fact that the pleadings were amended during the trial only emphasized the difference between the two actions.

I, therefore, agree that the judgment should be reversed and the cause remanded for a new trial, and this is the extent of my concurrence in the syllabus, opinion, and judgment.

The majority of the court has seen fit to express in the syllabus and the opinion conclusions of law which I consider to be not only obiter but also erroneous. Some further statement, therefore, seems appropriate.

I vigorously dissent from the conclusion that the only difference between an action upon a special promise and one upon an implied promise is a matter of proof, and that in the former case the promise is proved by evidence of oral or written words, whereas the latter is proved by the actions of the defendant. Obviously, there is a radical difference of proof in the two actions, but the essential difference is that in the action upon the special promise the defendant voluntarily assumes liability, whereas in the action upon the implied promise it is necessary to invoke a legal presumption in order to impose liability.

There is, therefore, an essential substantive difference between the two actions, and a defendant should not be required to answer to one when the other is tendered by plaintiff as the basis for his recovery.

Section 11238, General Code, provides:

"There shall be but one form of action, to be known as a civil action. This requirement does not affect any substantive right or liability, legal or equitable." (Emphasis added.)

It is well known that our substantive rights, recognized today (exclusive of statutory enactment), are those which were developed in the courts of common law. We have these by tacit adoption.

The courts of common law long resisted any imposition of liability based upon the theory of promise readily accepted by the civil law. It was not until the beginning of the seventeenth century that the courts of common law reluctantly receded from their position. At that time, in cases of which Slade's case (Slade v. Morley), 4 Coke's Rep., pt. 4, 92 b, page 505, is a type, the defendant was held liable for the breach of a promise because he had assumed, for a consideration, to pay. The same principle was applied in imposing liability for negligence in those cases where the defendant had assumed to do something and did it in such a way as to cause loss to the plaintiff, as where defendant assumed to carry the horse upon his ferry, which sank, and caused the loss of the horse. In the beginning, whether the action was based upon an obligation to pay money or to perform a service, it was in tort and responsibility ended with the death of either party. Later, arbitrarily, the courts began to recognize the survival of the former action, while still retaining that of negligence in the tort category. When the principle of the express promise was extended to cases where a consideration had passed to the defendant, or a detriment was suffered by plaintiff without definite promise, liability was imposed upon the theory that by receipt of the consideration or the suffering of the detriment the defendant impliedly promised to pay the plaintiff, and having failed to pay was liable in damages to the plaintiff because he had failed to keep a promise which the law presumed he made and which obviously he did not. The two actions were separated by appropriate forms at common law. Those forms have been abolished, but the substantive rights developed have been retained specifically by statute.

The fact that the amount of the consideration is not definitely included in an action upon an express promise obviously does not change that action to an action in which liability is imposed only by law.

Unless we are to abandon pleading, the plaintiff should be required to conform his proof to his pleadings; and when the plaintiff predicates liability upon a special promise, he should be required to prove that promise or accept defeat in the action he has chosen to bring against the defendant. The fact that no prejudice could be shown to the defendant in the converse of this situation is beside the point. The defendant could not be heard to complain that the plaintiff, relying upon only implied promise, had proved an express promise.

In the instant action, however, where the plaintiff abandoned his action on implied promise and specifically alleged an express promise, certainly, he should not then be permitted to return to his action upon implied promise only.

Again, I do not agree that the plaintiff in an action upon an implied promise must in his pleading negative a gratuitous furnishing of consideration by the defendant. The law ordinarily implies a promise to pay for services rendered or chattels received. This is the ordinary situation. If circumstances are involved indicating gratuitous service, then this is the unusual situation, and the defendant should prove those circumstances. This he could do under a general denial, including, as it does, denial of the implied promise. Until such facts are made to appear, however, the normal, ordinary responsibility following receipt of consideration should render unnecessary proof by plaintiff that such ordinary relationship does require payment.

The plaintiff enters an action upon implied promise with a prima facie presumption in his favor that where the defendant has received a consideration he should pay for it. The duty rests upon the defendant to meet this primary presumption of fact by evidence to the contrary.

I regret that I have been compelled to thus meet obiter with obiter, but I could not pass unchallenged statements in the syllabus and opinion, which seem to permit an abandonment of all recognition of the substantive rights created by the common law and retained in our practice specifically by statute, and an abandonment of the recognition of the essential differences between the actions which we have inherited and incorporated in our modern law.