*1 TREON, Plaintiff-Appellant, CO., PACKING DECKER VAL Defendant-Appellee. District, County. Appeals, Second Miami
Ohio Decided No. 451. November Estabrook, McKee, Dayton, plaintiff-appellant. &Finn Shipman Shipman, Troy, defendant-appellee. &
OPINION By THE COURT: appeal judgment an from a This is law rendered in defendant-appellee by the Common favor Pleas Court of County. Miami declaratory Plaintiff-appellant instituted an action for a alleges it that was farm the owner wherein County operated the defendant for the
in Miami whereby 1942to 1948under profit; fifty from time to receive cent each was to *2 accountings profits equally divided; had been made and time dairy properly certain failed to account for that defendant alleges prior operations. Plaintiff time further that some 16, 1946, plaintiff agreed September orally and defendant feeding the of 270 western steers on said undertake feeder to farm, purchase pay same, plaintiff the for the the and compensation the receive added for care of defendant said per day; the that the cattle $20.00 cattle sum were plaintiff farm; purchased by the and that delivered said days, the farm for after cattle were retained 30 which said slaughtered packing delivered to and in the 266 plant kept were steers by operated plaintiff. remaining the The 4 steers were proceeds subsequently the farm and sold and the ac- alleges Plaintiff for. further defendant counted fifty that claims alleged profit per steers; 266 cent realized plaintiff tendered check that for $793.13 defendant per agreed covering 30-day period, day sum for $20.00 for the cost feed furnished from $193.13 and defendant’s stock; accepted, that defendant retained later and cashed check was full the all tiff rights, tendered satisfaction of and arising claims of defendant out said transaction. Plain- prays respect declaratory with to the parties arising liabilities of duties and out of said agreement. oral petition plaintiff’s To defendant filed an answer and cross- petition allegations in which defendant admits certain petition plaintiff’s denies anything but that there is due plaintiff regular to the from defendant under the partnership operation agreement general farm; then follows defense, by denial. a second and way cross-petition, alleges plaintiff that and defendant respect entered into steers, provided that after which purchase said steers were sold all costs of expenses feeding and and other in connection there- profits be deducted with should and equally should be plaintiff defendant; divided between that was fur- agreed profit ther that in the no event was realized pay per tiff day defendant $20.00 was for his care alleges Defendant cattle. further he cared for said cattle period thirty days period at the for a end said slaughtered taken cattle were farm alleges plaintiff’s he company. that Defendant received check by was officers of $793.13 advised plaintiff company that covered the check defendant’s per day; compensation that he rate of was fur- $20.00 through officers, plaintiff, ther advised there involving profit realized on transaction January 15, 1947, steers; on or he about advised plaintiff company that unless he officials of cashed accepted nothing payment check and said receive would for his were officers work and said reiterated said cattle repre- such loss and that reason of sold at fraudulent sentation induced to cash check. alleges subsequently Plaintiff further he learned profit involving realized on the a 266 steers said transaction been slaughtered plaintiff company; that one-half of $7,644.94, deducting after amounted ($793.13) therefrom the amount of check there was due $6,851.71 defendant from the sum of with interest at six cent from October 1946. the cross-petition To the defendant’s filed an answer consisting of three first defense defenses. allegations cross-petition admits certain and reiterates *3 compensated its claim that for defendant be his work caring day; per in follows for the at the steers rate of $20.00 and then general plaintiff alleges denial. its second defense profits that no were on realized said transaction. For its plaintiff alleges third defense in reason that defendant $793.13 received obligations satisfaction of full due defendant alleges transaction. of said Plaintiff further that on 14, regular operation January partnership 1947 of the settled; July 23, farm was accounted and that on 1947 accounting another and settlement was had between regular involving tiff opera- and defendant partnership farm, again upon tion of and termination of de-. tenancy March, 1948, accounting fendant’s final and settle- regular involving partnership operation. ment was this of the reply. To answer the defendant filed stipulated agreed by parties It was and to submit the The jury issues fendant rendered verdict the de- prayed for the amount for. Plaintiff’s motion for overruled and new trial was on the entered verdict. assigned The first error is court erred in over- ruling plaintiff’s motion for verdict directed at the close of defendant’s case. Plaintiff contends since the defend- plaintiff’s reply ant did not file answer to the defend- cross-petition, allegations ant’s in its answer accountings at between and settlements arrived respecting the 14, 1947,July January 23, the defendant plaintiff and regular opera- 1948, partnership March, respecting the and therefore, farm, and must controverted not tion were operated true; as full settle- settlements said taken as accountings obligations. In our for all ments settlements operation regular partnership involving encompass not intended to in- were not the farm parties arising rights out obligations of the clude involving the steers. agreement acceptance cashing that defendant’s Plaintiff contends 1946 constituted accord December dated check of and satisfaction. check $793.13 he received Defendant admits Accompanying the was a check the transaction. Decker, signed Walter O. Vice-President letter pertinent part received, the company, defendant which being follows: as pleased No. 3654in the amount enclose our Check are “We feeding covering handling $793.13, 266 steers 19th, plant 18th and our on October returned to were which * * above, corn, per check, 75 bu. etc. *. As covers “This you allowing day for $20.00 $600.00. are also we our cattle, feeding amount days of these Thus 30 total $793.13, you you trust that due is we will amount find in order.” “The words total due contends Plaintiff part of intention on the you shows an $793.13” given in full satisfaction defendant’s claim
the check was offered evidence this transaction. plaintiff company an officer cashed before check was accept if he did cash the defendant informed than the amount much less receive the check he would controlling R., page rule is A. L. In Vol 34 check. follows: stated acceptance authority weight “By great and use *4 full,’ check, purporting by to ‘in or em- be remittance import, accompanied or letter ploying of similar words effect, and satisfaction that to an accord to larger amount creditor, assuming un- claim was claim of the that express agreement disputed, an liquidated ac- or so acceptance of, cept, smaller amount actual binding.” satisfaction, have been would full Jur., page 164, the text is as follows: Vol. O. In existing controversy there is the' “But between where parties due, regarding tender debtor full,’ ‘in settlement of check marked account in creditor, acceptance operates use of it satisfaction.” accord and support Sporkin, text the case of Bettman of the above v. 23, page Ap 223, See also Vol. Am. Jur. 6 Oh tion is cited. Sec 33; 22; page Dependa 1 C. Vol. J. S. Section Wellnitz v. (2d) Homes, 776; Penetryn 74 N. E. Platt 48 Abs bilt (2d) System, 451, N. 86 E. 151 Oh St reasonably may implied areWe be used letter statement from officer of words plaintiff company that check was intended payment full for amount due defendant and plaintiff’s defendant was informed of intention. However, the defendant claims was induced accept alleged repre- reason check fraudulent by the officers company sentation of the made profit realized effect had been transaction. rely contends defendant did not representations and, therefore, the defendant such has proven defendant, giving elements of fraud. The all check, cashing the reason for testified as his follows: got my I had to “After that I make out income tax and coming, money I this much I knew that I knew the cattle money objection that much made I knew overruled—and —Plaintiff’s coming, that I had this much knew the- I cattle did money, lose I my so cashed checks not out.” and had tax made agreement, must under the oral It be observed as the it, pay understood per day cattle, agree- for the care under $20.00 alleged cross-petition in the defendant’s ment he was to and, per day according testimony, $$20.00 his receive work, reasonable sum for his receive if no either made. Under version the de- day $20.00 fendant was entitled reasonable sum explains This situation work. statement *5 550 money he effect knew had that much the that he defendant the coming. defendant did not The claims that representations points to the statement of
rely on such and did the that knew the cattle not effect he the defendant money. weight in The conflict as to the and evidence lose price slaughter. grade at the the market time of of the cattle and support allega- of evidence in the defendant introduced The cross-petition plaintiff company, through in the tions his officers, represented profit falsely that no been made had The defendant that one of the on the transaction. testified any money. They didn’t Deckers told him: weigh any make “We didn’t Kansas,” “Bob, they more than them and money. didn’t We took cattle in cattle 21c”; make them at brought one of Deckers the farm com- the out company the pany records show at defendant slaughter purchased had cattle time of other and 20c-22c knowledge pound. The 23c or defendant had no truth president representations. falsity plain- these The company tiff denied that told the defendant had money fact, lost testified: “In I didn’t cattle and know whether they money money, lost or made tell truth about it.” statement, In of this how can it view be claimed defendant rely representations? on such determining did not whether plaintiff representations defendant relied transaction, no was made the statements by the made and defendant must be considered in doing business, light of the method of as well as the conduct of a defendant before after the defendant check was cashed. For period years practice for was regular make semi-annual settlements operation partnership records plaintiff kept farm. The all semi-annually up report would make a written receipts it, together of check for accepted and disbursements and send with a due, to the defendant. The defendant reports question and checks and raised as accuracy. to their The testified: defendant “Because I trusted Bill Decker be honest and faithful me.” The evidence July, shows to 1947 notified the defendant March, 1948, farm in vacate which he did. This action in May, period many instituted 1948. For months accepted the check was cashed after defendant the situa- elapse only tion it was after of six or seven months that he records examined friend then made claim. statement of defendant that knew money may regarded expression not lose cattle did of an jury and does not take the determina- question tion whether the defendant relied on entire plaintiff. representations In view minds development say reasonable cannot we factual not fraud on this Whether differ matter. could repre- relied on the false proven, and whether by the sentation, for determination matter factual principle laid law in this case fall The facts within Mudge, Pope N. E. wherein St Oh down it is held: against the error the court to direct a verdict “it is where, by giving *6 inter- tiff, most to the evidence favorable the reasonably pretation of the evidence will toward him which support allega? warrant, tending the there some evidence to is petition. tions of the “If, ruling upon verdict, in direct the court is motion to a a required conflicting the evidence of the detect truth from witnesses, the be overruled.” or different motion should same Pope Mudge asking plaintiff, the the In case who was deposition ground fraud, on relief the had stated in a Mudge things did not the he said about believe his at- torney. opinion, page discussing The in on court in this statement of whether the sufficient to take jury question the case from non-reliance representations made, said: charge jury sustaining “In his the motion and di- recting quoted length he verdict at considerable from the deposition Pope wherein asserted that did he not believe the things Mudge attorney, said about were there Pope’s deposition testimony no other in quoted than that directing action trial court in a verdict would not be * * * by disturbed While deny this court. he categorically did statements, that scribe believed he also undertook to de- upon effect of the statement his mind and his resultant conduct thereafter. arriving, probable therefore, “In truth of the matters by him, requires testified to it physical consideration of his deposition mental condition as disclosed and other evidence, consideration of contradictory inconsistent and an- swers in connection with each other evidence, and other con- sideration of the conclusions the witness in connection drawn, which such conclusions were whether such facts conclusions, warrant whether the conduct of the witness was consistent declared, not, conclusion he if whether expressed preference conclusion is to be believed in to conduct, events, the succession of as detailed the witness witnesses, in with the and other that connection admitted fact * * * $25,000. short, for the verdict sum of detecting to, requires matters in the exercise of the function of it to disbelieve Such is the truth of the it testified facts, privilege trier of whose testimony worthy he finds believe of belief and testimony unworthy which he finds belief. jury.” function properly trial In our court submitted jury representations the issue as whether relied on the plaintiff company. of the officers of the All clearly appear. jury other elements of fraud Since the general interrogatories may returned verdict without we this in assume that issue resolved favor of the defendant. issue, case, and all the in On this determinative issues in conflict. There evidence was is sufficient the this issue evidence on support verdict of the refusing give plaintiff. contends court Plaintiff erred two special requested jury to the instructions special finding failed instructions submitted to include a jury issue of fraud. Since the instructions re- quested only principles applicable stated of law to cer- case, required jury in the tain issues event return also but it resolved certain issues favor of the plaintiff, it verdict defective finding jury not include on the issue of fraud. overruling plaintiff’s contends court Plaintiff erred in *7 ground on the trial motion jury.» new misconduct of the supported by The motion for trial was new affidavits jury twenty-one that the to the effect deliberated minutes reaching provision statutory verdict. There is before length prescribing jury time shall deliberate before reaching J., page 1019, a verdict. 64 C. 808, Vol. Section rule stated as follows: the result judgment, “While verdict should be of sound dispassionate consideration, reflection, and conscientious should, necessary, jury if long patiently deliberate them, yet, the issues been on which have submitted where positively prescribe length not does law of time jury verdict, they their may shall consider render valid retiring, very verdict without on brief deliberation after retiring, although may, discretion, the trial court in its cause jury their hasty reconsider case if decision is so flippant disregard to indicate a their duties.” Jur., page 1072,
In Vol. 39 O. Section the Ohio rule is stated: prescribe length any “The does not time that law jury verdict; out in shall remain consideration their general rule,
this, according is matter addressed the discretion court.” trial Finding prejudicial rights no error the record to the is affirmed. MILLER, PJ, WISEMAN,JJ, HORNBECK and concur.
ON APPLICATIONFOR REHEARING No. 451. Decided December By THE COURT: application matter to the on This was submitted Court for for rehearing. filing provide While the of Court rules do not now application, recognize applica- such this Court will such pass on tion matter of merit which is Motion raised. defendant-appellee application re-hearing strike the
is overruled. only application The matter raised has not which already been considered the Court and reflected in its testimony appears is the line of page which on defendant-appellee of the certain information record where testified he had not which was furnished the Deckers. Plaintiff-appellant testimony cites this line of show defendant-appellee rely statements made However, clearly the record Deckers. shows that the informa- defendant-appellee came to the tion which price to the related Company at which beef was sold the Decker to of nothing price dealers and to do market beef on hoof. testimony spread does not show a definite and certain price between market the steers hoof and the price company packing at delivered beef to the dealers. Whether or not made the transaction weight was determined of the steers and the market price slaughter. on the hoof the time One of the ele- price ments that grade into the market entered was the *8 slaughter. the cattle at the time of Whether the defendant- by the statements made Deckers was appellee relied on determined matter factual Application denied. WISEMAN, JJ, PJ, concur. MILLER, HORNBECK ALLIANCE OF OF EDUCATION CITY BOARD SCHAFER et. DISTRICT SCHOOL Court, County. Pleas Stark Common August Decided No. 91039.
OPINION MCLAUGHLIN,J. By petition pleadings, consisting of composite reply answer of defendants fact, present one issue follows: Did Schafer, resign position Superintendent E. tiff, Russell