DocketNumber: Nos. 26013 and 26029
Judges: Hurd, Kovachy, Skeel
Filed Date: 11/29/1962
Status: Precedential
Modified Date: 11/12/2024
This is an appeal on questions of law from a judgment entered in the Cleveland Municipal Court from which both parties have taken an appeal, the cases having been consolidated by motion.
The defendant, Hy-Decker Industrial Catering Company, Inc., entered into a contract with the plaintiff, Scotsman of Ohio, Inc., to lease an ice-making machine with a storage.bin
In 21 Ohio Jurisprudence (2d), 710, Evidence, Section 684, it is stated:
“The testimony of a party to an action necessarily subversive to his interest in the particular action is regarded in all courts as conclusive. In short, a party who becomes a witness is bound by his admissions on the witness stand. * * *”
See Tritsch v. Bach, 87 Ohio App., 19, 93 N. E. (2d), 333.
The fact, therefore, was conclusive that the faulty operation of the ice machine and bin was not attributable to any mechanical defects in the ice machine, as furnished by the plaintiff.
We conclude that since the plaintiff concurred with the defendant in the termination of the lease by removing the new, ice machine and bin, and since the difficulty in the operation of said ice machine and bin as installed was caused by the defendant operating the same in the sun, contrary to the instructions of the plaintiff, the defendant was liable to the plaintiff only for the rental value of said machine and bin from the time of its installation until its removal by the plaintiff. Under the terms of the lease this amounts to $278.0Q.
The judgment of the trial court in favor of the plaintiff in the sum of $1654.00 is, accordingly, modified to read “in the sum of $278.00 with interest at 6% from August 11, 1960” and the judgment as modified is affirmed.
Exceptions. Order see journal.