Johnson v. Spiegel

4 Ohio C.C. 388

• Court: Ohio Circuit Courts
• Decided: January 15, 1890
• Status: Published

Opinion

Swing, J.

Two points of error are relied on by plaintiff in error:

First■ — -That the court erred in sustaining a demurrer to the supplemental answer and cross-petition of the defendant.

The plaintiff’s action was against the defendant|for borrowed money, and board, nursing and washing. After the commencement of the action, defendant became the owner of a claim against the plaintiff, and alleged! plaintiff was insolvent, and asked that the claim[might be set off against plaintiff’s claim.

Judge Swan says, in his)Treatise, than which there is no better authority, at page 797, tenth edition : “ If the defendant, after the suit is commenced.against him^procure an assignment of a debt against the plaintiff, he cannot be allowed to bring it in by way of set-off, and it,is for the defendant to satisfy the justice * * * that the set-off was held by him before the commencement of thejsuit;’’ and such we understand to be the law. We thereforejfind no error in the judgment of the court on this point.

Second — The second ground of error relied upon arises out of the refusal of the court to give af certain charge requested by defendant, which is as follows:

“The plaintiff, in order to recover in-this action for any of the services rendered for him, or the board furnished him, must .prove the value of the same; what the same is reasonably worth, and if no value thereof is proved, and there is no evidence from which their valuejcan be ascertained, nominal damages only can be given therefor;” and the giving by the court of the following charge :

“ As to the claims for board, washing and nursing, the jury are to find from all the evidence in the case whether the-board was furnished and the services in washing and nursing rendered; and having first so determined, if they do so-find, then they are to find the value thereof; there has been no evidence,'offered as to said value. But, I charge you, that as to matters of this nature, such as board and washing, which are within the common knowledge and experience of all, the jury have a right, in the absence Of all proof as to value, and from their own knowledge of such transactions and business of life, and of the value of such services, to find a verdict for the value thereof; that this rule does not apply to the ques: tion of the^value of the nursing, as to which there was no evidence in the case.”

We find upon an examination of the bill of exceptions, that there was no evidence offered as to the value of the services rendered by plaintiff, either for board, washing or nursing.

The action of the plaintiff was on an account, the itemized statement of which is as follows :

1883 — July 27. To money loaned........................... $25 00

1883 — July 27, to August 17, 1883, board at $5 per week 4J weeks.................................... 22 00

1883 — Aug. 17, to Oct.'26, washing at 50 cts. per week. 5 00

1883 — Sept. 8. To cash at hospital.......................... 5 00

1883 — Sept. 8. To weeks nursing when sick........ 9 00

The answerj)f the defendant was a general denial.

• In refusing to give~the charge asked, and in the charge as given,awe think'jthe 'court erred.

The law as laid down by the court was so contrary to our understanding of it, that we were surprised to see it sustained by so high a'court as the]Court of Appeals in Kentucky. In the case of Baum v. Winston, 3 Met. (Ky.), and in the case of Craig v. Turrett, 1 J. J. Marshall, we find the law to be in accordance with the holding^of the court. However in the 8th Arkansas we find the law to hold otherwise. These are the only cases wejhave been able to find exactly in point. We have however] made no particular effort to find adjudicated cases on the question, but have looked to the general principles of evidence as given by Greenleaf, Taylor, Whorton, Phillips and¿Starkie, and in none of these have we been able to find the! position taken by the court to be sustained. Starkie probably states the general principle more clearly than the others. He says, at section 735 “ It is however requisite in all cases that the plaintiff should adduce some prima facie evidence in support of any essential allegation. When there is a failure of evidence tending to establish any one essential averment, the court directs an acquittal in a criminal, or directs the plaintiff to be non-suited in a civil action.” * * *

Burch & Johnson, for plaintiff in error. Carr & Dengler, for defendant in error.

In Trial by Jury, Mr. Forsythe, at page 135, says : “ It was in consequence of this principle of the original constitution of the jury that it was for a long time held that this private knowledge of facts might influence their verdict as much as the oral and written evidence which was produced in court. And, therefore, they might bring in a verdict although no proofs was offered on either side. * * * This is the meaning of the old legal doctrine, which is at first sight somewhat startling, that the evidence in court is not binding evidence to a jury.” * * *

“And now so different is the principle on which the jury •find their verdict that it would be a reason for a new trial if they were told by the presiding judge to take into account and be guided by their own knowledge of facts derived from any source independent of the evidence before them.”

The plaintiff alleged that the services in this case were of a particular value. The boarding so much, the washing so much, and the nursing so much. These allegations were all denied by the defendant, and, therefore, became issuable facts in the case. It is true that the jury would be expected, in considering the evidence, to apply to it their general knowledge of the value of such services; but the jury can not supply from their own minds, which was incumbent upon the part of the plaintiff to furnish.

It follows from the foregoing view of the law of this case, that the judgment of the court below must be reversed, w’ith costs, and remanded for further proceedings.