Gove Associates, Inc. v. Thomas

392 N.E.2d 1093, 59 Ohio App. 2d 144, 13 Ohio Op. 3d 184, 1977 Ohio App. LEXIS 7108

• Court: Ohio Court of Appeals
• Decided: November 30, 1977
• Docket: 2576
• Status: Published

Opinion

Mahoney, P. J.

The defendant, Dennis Thomas, appeals a judgment rendered in the Elyria Municipal Court, awarding the plaintiff-appellee, Gove Associates, the sum of $3,262 plus interest.

Gove Associates brought suit for money due it for services rendered in connection with Thomas’ plan to develop certain housing projects. The issue was tried to the court and a judgment was entered in favor of the plaintiff. We affirm.

Assignment of Error 1

“The court erred in failing to dismiss Plaintiff’s Complaint at the close of its case, upon due motion by the Defendant.”

The defendant argues the plaintiff never proved its corporate capacity to make a contract or sue. The pleading burden was on the defendant to deny the plaintiff’s capacity by specific negative averment. Civ. E. 9(A). The answer contained only a general denial. Consequently, this objection was waived. Civ. E. 12(HI.

Assignment of Error 2

“The court erred in allowing Plaintiff to recover upon its submitted billings, rather than determine the fair value of the Plaintiff’s services.”

This suit was upon an oral contract. The defendant never objected to the introduction of the exhibits making up the account on the ground that they did not reflect the fair value of the charges. He, therefore, has waived the issue of value. Even treating this assignment as directed to the weight of the evidence, we find the court’s determination is not against the manifest weight of the evidence. See, In re Estate of Straub, unreported, Ninth Appellate District No. 1421, decided March 24, 1976.

The defendant’s assignments of error are overruled and the judgment is affirmed.

Judgment affirmed.

Bell and Victok, JJ., concur.