Slamey v. City Material Co.

Ohio Court of Appeals

Slamey v. City Material Co.

165 N.E. 55, 30 Ohio App. 435, 6 Ohio Law. Abs. 670, 1928 Ohio App. LEXIS 486

CourtOhio Court of Appeals

DecidedApril 23, 1928

Docket8473

StatusPublished

This text of 165 N.E. 55 (Slamey v. City Material Co.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Slamey v. City Material Co., 165 N.E. 55, 30 Ohio App. 435, 6 Ohio Law. Abs. 670, 1928 Ohio App. LEXIS 486 (Ohio Ct. App. 1928).

Pincite

Opinion

*671 SULLIVAN, PJ.

We have examined this claim of error and we find from the record that a competent witness identified the signatures attached to the exhibits in question and that the signatures were either that of the contractor or his brother, both of whom were on the job where the material ordered is claimed to have been delivered, and there is credible evidence in the record, although there is conflict upon the point, that the materials ordered went into the premises of the owner of the property, and that the owner, if he did not originally order the materials, ratified the act of the contractor and his brother aforesaid, in accepting the material and having knowledge that it went into the building.

In our judgment, these exhibits, under the record, were competent for the purpose of showing the order and delivery to Slamey -of the materials for which a recovery and lien is sought. This being so, the question is reduced in the final analysis to the issue as to whether the judgment is clearly and manifestly against the weight of the evidence, and inasmuch as there is credible evidence to support the contention of the cross-petitioner, we are bound to follow the authorities which are universal in Ohio that a reviewing court cannot reverse upon the weight of the evidence excepting as a matter of law.

It is claimed that the plaster and lath came from another source than The City Material Co., but upon this point there is a conflict in the evidence and under the authorities there is some evidence of a substantial nature to bear out the contention that this material came from the cross-petitioner.

It is claimed that the petition is insufficient on the ground that there is no allegation that the owner had any contract with the party who purchased the materials. This brings us back to the record again, as it appears from the exhibits that the persons who signed the order and received the materials were authorized in the premises, and if they were not originally, there is credible evidence that their act was ratified by the owner subsequently by accepting the property. This status applies to the charge which is made as to the mechanic’s lien. It is true that with reference to that subject, the statutes must be followed but we think from the evidence in the case that the owner is linked up by sufficient credible evidence with the purchasers of the materials and inasmuch as this situation is apparent from the record we do not think that the case of The United States Mortgage & Trust Co. v. M. M. Wood, et al, 19 O.C.C. 358, is at issue with our holding here. It is our judgment that the evidence submitted on this question created a situation whereby counsel in the case tried the issue as if there was no infirmity whatsoever with the petition itself. Notwithstanding Jones on Evidence. p. 1037, Sec. 820; Wills v. Russell 100 U.S. 621, Syll. 1, and other similar authorities, we think there was no prejudicial error from a survey of the entire record and that substantial justice has been done.

Thus holding the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)

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*671 SULLIVAN, PJ.

We have examined this claim of error and we find from the record that a competent witness identified the signatures attached to the exhibits in question and that the signatures were either that of the contractor or his brother, both of whom were on the job where the material ordered is claimed to have been delivered, and there is credible evidence in the record, although there is conflict upon the point, that the materials ordered went into the premises of the owner of the property, and that the owner, if he did not originally order the materials, ratified the act of the contractor and his brother aforesaid, in accepting the material and having knowledge that it went into the building.

In our judgment, these exhibits, under the record, were competent for the purpose of showing the order and delivery to Slamey -of the materials for which a recovery and lien is sought. This being so, the question is reduced in the final analysis to the issue as to whether the judgment is clearly and manifestly against the weight of the evidence, and inasmuch as there is credible evidence to support the contention of the cross-petitioner, we are bound to follow the authorities which are universal in Ohio that a reviewing court cannot reverse upon the weight of the evidence excepting as a matter of law.

It is claimed that the plaster and lath came from another source than The City Material Co., but upon this point there is a conflict in the evidence and under the authorities there is some evidence of a substantial nature to bear out the contention that this material came from the cross-petitioner.

It is claimed that the petition is insufficient on the ground that there is no allegation that the owner had any contract with the party who purchased the materials. This brings us back to the record again, as it appears from the exhibits that the persons who signed the order and received the materials were authorized in the premises, and if they were not originally, there is credible evidence that their act was ratified by the owner subsequently by accepting the property. This status applies to the charge which is made as to the mechanic’s lien. It is true that with reference to that subject, the statutes must be followed but we think from the evidence in the case that the owner is linked up by sufficient credible evidence with the purchasers of the materials and inasmuch as this situation is apparent from the record we do not think that the case of The United States Mortgage & Trust Co. v. M. M. Wood, et al, 19 O.C.C. 358, is at issue with our holding here. It is our judgment that the evidence submitted on this question created a situation whereby counsel in the case tried the issue as if there was no infirmity whatsoever with the petition itself. Notwithstanding Jones on Evidence. p. 1037, Sec. 820; Wills v. Russell 100 U.S. 621, Syll. 1, and other similar authorities, we think there was no prejudicial error from a survey of the entire record and that substantial justice has been done.

Thus holding the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)

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Bluebook (online)

165 N.E. 55, 30 Ohio App. 435, 6 Ohio Law. Abs. 670, 1928 Ohio App. LEXIS 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slamey-v-city-material-co-ohioctapp-1928.

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