Mendenhall v. Haven & Co.

19 Ohio C.C. 685

• Court: Ohio Circuit Courts
• Decided: January 15, 1899
• Status: Published

Opinion

SMITH, J.

In this case we are of the opinion that the trial court erred to the prejudice of the plaintiffs in error, in two particulars, viz.:

First — In refusing to allow them to oiler evidence tending to show that prior to the malking of the contracts sued on, the plaintiffs in error had entered into a contract with John Car-lisle and George W. Carlisle, their brothers and tenants in common with them of the real estate known as the St. Nicholas Hotel property, to the effect that in consideration of the conveyance by said plaintiffs in error to the said John and George W. Carlisle of their interest in other real estate owned by them, the brothers were to make the improvement of the St. Nicholas property as provided for in the contract between Mr. Both and John Carlisle, who had signed said contract as trustee for the heirs of John Carlisle; and further, that said plaintiffs in error never authorized John Carlisle to make the contracts sued on in these cases for them, and had no knowledge of the making of the same, or of the terms thereof; and

Second — In directing the jury, after the evidence on both sides had been fully heard, to return a verdict for the plaintiffs below.

Under the pleadings and the evidence offered the question whether the plaintiffs below were entitled to recover was one for the jury alone. In Neuman v. Cincinnati, 18 Ohio, 323, the court held, “that it is error to charge the jury in general terms,'that the plaintiff has no cause of action, and that they must find for the defendant, especially where evidence has been exhibited by both parties; and for such error the judgment must be reversed, although the reviewing court may be satisfied upon the facts exhibited that the defendant, in fact, was entitled to a verdict.” For like reasons, we think that under such circumstances the court has no right to say to,the jury that the plaintiffs are entitled to recover. The judgments will, therefore, be reversed and new trials awarded.

Giffen, J., concurs in the judgment of reversal, not only for the reasons stated above, but on the further ground that the verdict of the jury was manifestly against the weight of the evidence, in finding that John Carlisle was authorized to make the contracts sued on on behalf of the plaintiffs in error, or to bind them thereby.