Ach v. Joseph R. Peebles' Sons Co.

17 N.E.2d 302, 59 Ohio App. 137, 27 Ohio Law. Abs. 63, 12 Ohio Op. 415, 1938 Ohio App. LEXIS 472

• Court: Ohio Court of Appeals
• Decided: January 24, 1938
• Docket: No 5294
• Status: Published

Opinion

OPINION

By ROSS, PJ.

Appeal on questions of' law from the court of common pleas of Hamilton county, Ohio.

In this case the appellant purchased stock in The Joseph R. Peebles Sons’ Company upon certain representations and under an agreement made with the corporation’s representative that the value of the stock was correctly reflected in a balance sheet of the company, which was later found to be inaccurate.

The action is predicated upon fraud in the inception of the transaction resulting in the sale of the stock to the appellant. The prayer in the amended petition was for rescission and judgment for the purchase price of the stock.

The amended petition states a cause of action in equity. A receiver, was appointed upon the application of the appellant. Applications for payment of many cla'ims were made to such receiver.

The claim of the appellant came on to be heard. Both counsel, apparently under the impression that the case was a law action, submitted it to a jury. At the close of the evidence, both counsel submitted unreserved motion for instructed verdict, and took exceptions to the refusal of the court to discharge the jury and pass upon the facts as well as the law.

Upon this situation, no assignment of errors involving the jury need be considered by the court, as the jury acted merely in an advisory capacity to the court, which was considering first the right of the appellant to rescission of the contract, a purely equitable matter.

Upon examina'ion of the record, we find no error in the judgment of the trial court, and, therefore, affirm the same.

HAMILTON & MATTHEWS, JJ, concur.