Bonewitz v. Bonewitz

• Decision Date: 13 June 1893
• Citation: 50 Ohio St. 373,34 N.E. 332
• Parties: BONEWITZ v. BONEWITZ.
• Court: Ohio Supreme Court

34 N.E. 332

50 Ohio St. 373

BONEWITZ v. BONEWITZ.

Supreme Court of Ohio.

June 13, 1893

Error to circuit court, Van Wert county.

The other facts fully appear in the following statement by SPEAR J.:

In the petition the plaintiff in error, who was plaintiff below, set out an agreement in writing, of which the following is a copy: ‘ Van Wert, Ohio, May 26, 1877. One day after date I promise to pay to Mrs. Elizabeth F. Bonewitz, or her heirs or assigns, thirteen hundred dollars, ($1,300.00,) for value received. I also hereby agree for myself, my heirs and assigns. that upon the presentation of this obligation to me my heirs or assigns, by her or her heirs or assigns, to take up this obligation, and in lieu thereof to surrender to her her heirs or assigns, one-quarter interest in the business of the firm of Bonewitz, Schumm & Co., as that interest may appear from the books of said firm, after deducting all expenses, losses, and liabilities, and making capital stock equal as between parties; that is to say, she would have an interest of thirteen hundred dollars in the capital stock and one-fourth part of the net gains or losses as the case may be. [Seal.] D. R. Bonewitz.’ She averred further, in substance, that at the time of the making of the agreement she was a married woman; that the defendant, one O. P Bonewitz, and Louis G. Schumm, had about that time entered into a partnership to deal in dry goods, etc., under the name of Bonewitz, Schumm & Co.; that defendant urged her to give him the money to invest in the business of the firm representing that she should be a dormant partner, and have a fourth interest, and, relying upon those representations, and agreeing thereto, she gave him said money, and thereupon defendant executed the writing. Subsequently, O. P. Bonewitz and Schumm retired from the firm, the defendant purchasing their interest and continuing the business, the plaintiff still retaining her one-fourth interest upon the assurance of defendant that her interest would not be affected by the change, and the business had been so conducted to a time shortly before the commencement of the action; that defendant now denies that she has any interest in the business, and refuses to allow her any participation therein. The firm has been successful; is possessed of a valuable stock of goods, and has a large amount of debts owing to it, and a valuable good will; and since the plaintiff so entered the partnership has gained a large amount of profits, the exact amount of which plaintiff cannot tell, though she believes and charges that it exceeds $50,000, all of which defendant has kept and appropriated, and refuses plaintiff access to the books of the firm. No part of the $1,300 has ever been paid to her. The prayer was that the contract be specifically enforced; that she be deemed to be a partner, and then that defendant be compelled to account with her, and pay what may be coming to her; but, if she be not entitled to such remedy, then for judgment for $1,300, and interest from May 27, 1877.

By his answer, defendant admitted that he received $1,300, but averred that the money, which was received on account of the husband of plaintiff, one Frank J. Bonewitz, and not on account of plaintiff, has been fully paid to said Frank J.; and took issue on the other allegations of the petition. Further answering, the defendant alleged ‘ that he at no time, to his knowledge, signed the pretended contract set out in the plaintiff's petition, providing that the plaintiff could, on the surrender of said pretended contract, acquire an interest in the business of Bonewitz, Schumm & Co., and which pretended contract she asks to have specifically enforced in this action; and he therefore denies that he did sign the same, and he avers that, if his name attached to said pretended contract is his genuine signature, it was procured by fraud and misrepresentation, and without his consent, and without his knowledge, and wholly without consideration. Wherefore the defendant prays that said pretended contract be declared fraudulent and void, and that the same may be canceled, and that the defendant go hence, and recover his costs.’

The new matter was traversed by a reply. In the common pleas it was found, and stated in the journal entry, ‘ that, the cause coming on for trial, came thereupon the parties and their attorneys, and neither party demanded or waived the interposition of a jury, but without objection submitted the cause to the court upon the pleadings, evidence, and argument of counsel.’ The court then found for the plaintiff, and rendered judgment for $1,300, interest, and costs, but found against her as to the alleged partnership. Motion for new trial by defendant was overruled. Error was then prosecuted by him to the circuit court, where the judgment of the common pleas was reversed, and the cause remanded.

Syllabus by the Court

1. A party may waive his right to a jury trial by acts, as well as by words.

2. And where, in a case of which the court of common pleas, having jurisdiction of the parties, may also, by consent, acquire jurisdiction to try the cause without a jury, the record shows that the parties appeared, and neither demanded nor waived a jury, but without objection submitted the cause to the court upon the pleadings, evidence, and argument of counsel, it is not error for the...