Glassmeyer v. Glassmeyer

Plaintiff, appellee herein, filed suit in the Common Pleas Court of Hamilton County as administrator of the estate of May Glassmeyer, claiming a violation of an agreement between plaintiff's decedent and the defendant, her son. Two causes of action were alleged; one was abandoned; the judgment in the other being the cause of the appeal to this court. In the lower court, the contract was introduced in evidence by the plaintiff, who then rested his case. Not a scintilla of evidence was offered to the effect that plaintiff's decedent had performed the contract. At this juncture in the proceedings, the defendant made a motion for judgment in his favor. After argument on the motion, the court said that he would reserve his ruling on the motion. Defendant reserved his rights and was assured by the court that offering testimony by him, would not prejudice his rights to have the motion passed on as if decided at the conclusion of plaintiff's case. It must be kept in mind that plaintiff had rested his case; further, that if defendant was entitled to a judgment at this time, nothing which happened thereafter should, or could affect that right.

Thereupon, defendant offered testimony to the effect that plaintiff's decedent had never performed the contract on her part to be performed. The contract is not one for the absolute payment of money, as claimed by the plaintiff. Under the agreement, among other things, the mother was to transfer certain property to her son in consideration of the son's assuming obligations of hers; the mother was to cancel certain obligations which the son owed her, and the son was to pay his mother $200 per month until a total of $100,000 was paid. There was no allegation in the petition nor was any proof offered that the mother had conveyed the property; nor was there any testimony offered that the mother had paid any of her son's obligations. As a matter of fact, the sole testimony in the case, which, by the way, was offered by the defendant, was to the effect that the deed referred to in the contract was prepared, but never delivered to the son. This was the testimony of attorney Leo A. Burke, who was counsel in the case, representing the parties at the time of the execution of the contract.

After the introduction of defendant's evidence, the defendant insisted that the court rule on his renewed motion. Plaintiff, realizing that he was in a difficult situation, then made a motion to dismiss, without prejudice. This motion, the trial court granted. The majority of this court held that the trial court could grant such a motion, without prejudice to the defendant's rights, for the reason that "the record before us clearly shows that the parties had not submitted the case to the court for decision on both law and fact at anytime." With this view, I can not concur.

At the conclusion of plaintiff's case, the defendant, by his motion submitted to the court, upon the facts proved at that time, and upon the law applicable to those facts, that plaintiff had not made out a case; at the conclusion of all the evidence, upon the renewal of the old motion, not a new motion, the defendant again submitted to the court that upon the additional testimony offered by him, he was at that time again entitled to a judgment.

It is true that the court had not ruled on the old motion or the renewal thereof, but the case had been submitted when the motion was made at the end of plaintiff's case and it was again submitted by the renewal of the motion at the conclusion of all the evidence. After submission, I agree with the majority that the plaintiff can not dismiss. My point is, that the case had been submitted twice before plaintiff's motion to dismiss had been made.

The mere introduction of the contract in question does not make out a case for plaintiff. The son was not obligating himself to pay $100,000 until he had a conveyance of the property and something done by his mother by way of assuming his obligations.

For the plaintiff to recover in this case, the price of the land, it must be alleged and proved that the plaintiff had substantially performed or tendered performance. 11 Ohio Jurisprudence (2d), 464, Section 211. There is no such proof; the evidence is to the contrary. If the trial court had passed upon defendant's motion at the conclusion of plaintiff's evidence, or at the conclusion of all the evidence, he should have granted the motion.

My judgment is, that there was a submission of the case on the law and facts two different times, and the defendant should not be deprived of the judgment to which he was entitled at either time. Final judgment should be rendered in favor of defendant.