Board of Ed. of Addyston Village School Dist. v. Nolte-Tillar Bros. Const. Co.

• Decision Date: 25 November 1946
• Citation: 71 N.E.2d 311,79 Ohio App. 193
• Parties: BOARD OF EDUCATION OF ADDYSTON VILLAGE SCHOOL DIST. v. NOLTETILLAR BROS. CONST. CO. et al.
• Court: Ohio Court of Appeals

71 N.E.2d 311

79 Ohio App. 193

BOARD OF EDUCATION OF ADDYSTON VILLAGE SCHOOL DIST. v. NOLTETILLAR BROS. CONST. CO. et al.

Court of Appeals of Ohio, First District, Hamilton.

November 25, 1946

Syllabus by the Court.

1. The doctrine of 'the law of the case' has no application to the statements of rules of law announced by an appellate court for its own guidance in passing upon the record of a trial and in determining whether the appellant is in a position to assert the trial court erred in overruling appellant's motion for judgment notwithstanding the verdict. Such statements are inapplicable on a new trial of issues made by amended pleadings thereafter filed by leave.

2. Where a contract provides for arbitration of disputes and the right to arbitrate is asserted by amended pleading after the first appeal, the fact that the appellate court on the first appeal had held that the appellant could not for the first time raise the failure of the court to grant arbitration and that he had waived his right so to do, does not prevent him from raising the issue by amended pleading thereafter.

3. An order staying the trial until an arbitration is consummated in accordance with the terms of the contract sued upon is not a final order from which an appeal may be taken.

John J. Cooney and Roy L. Struble, both of Cincinnati, for appellant.

Frances T. Bartlett and A. A. Rendigs, Jr., both of Cincinnati, for appellees.

MATTHEWS Judge.

This is the second appearance of this case upon the docket of this court. The first appeal was from an order of the Common Pleas Court overruling a motion of the defendants for a judgment notwithstanding the verdict. The defendants had also filed a motion for a new trial which the court had granted and so at the time this court heard the appeal the case stood upon the docket of the trial court for trial of the issues raised by the pleadings. By the appeal the defendants sought to avoid the new trial, their claim being that on the record made at the trial they were entitled to judgment and, therefore, the court had erred in overruling their motion for judgment. This court held against them on that issue and affirmed the action of the trial court in overruling their motion for judgment. The order of the trial court granting a new trial was not involved in that appeal excepting that had this court reversed the order of the trial court in overruling the defendant's motion for judgment it would have resulted in a final judgment for defendants, which would have nullified the order granting the new trial. The order of the trial court granting the new trial was in general terms, specifying no ground therefor, and the judgment of this court on the appeal was equally general, reciting only that the record showed no prejudicial error, and remanded the cause without any direction as to the course to be pursued on the new trial. The opinion of this court on the first appeal is reported in 71 Ohio App. 469, 49 N.E.2d 99.

The record before this court on that appeal showed that the case had gone to trial upon an amended petition and the defendants' answers thereto.

In the amended petition, the plaintiff alleged that it had entered into a written contract with the defendant, Nolte-Tillar Bros. Construction Company, whereby Nolte-Tillar Bros. Construction Company agreed 'to provide all materials and perform all labor for the construction and completion of a public school building in Addyston, Ohio, in accordance with certain duly adopted plans and specifications,' and that the defendant, the New Amsterdam Casualty Company, guaranteed the faithful performance of the contract by Nolte-Tillar Bros. Construction Company.

It is alleged that Nolte-Tillar Bros. Construction Company did construct the building, but that it violated the contract by failing 'to construct mortar joints in outside brick walls with well mixed and tempered materials and failed to lay bricks in full beds of mortar with joints completely filled and slushed with mortar and failed to construct said walls in a substantial and permanent manner as provided for in said contract and specifications.' It was also alleged that if failed to construct the roof 'as provided for in said specifications' and as a result the roof leaked.

It will be observed that there in no direct allegation of the terms of the contract and only by inferring from the allegations of the respects in which the contract was broken can any of the terms of the contract be discovered.

It will also be observed that no reference was made to any provision for arbitration.

The answer of the defendants admitted the execution of the contract and the construction of the building and then denied the breach of the contract alleged by the plaintiff.

It was upon these pleadings that the trial proceeded, which resulted in the verdict for the plaintiff, the record of which was under review in the first appeal to this court.

The sole issue raised by the first appeal was whether this court could say that, in view of these pleadings and the record of the trial thereon, the defendants were in a position to assert error in overruling their motion for judgment. At most we are concerned now with the extent if any, to which the course of the second trial was required to conform to...