Action
on account - Services rendered - Petition in short form -
Section 5086, Revised Statutes - Petition construed -
Sufficient cause of action averred by implication - General
denial - All facts necessary to cause of action in issue -
Defendant also pleads contract - Terms preclude recovery -
Reply does not enlarge issues - Burden of proof rests with
plaintiff.
1.
Where in an action on an account to recover for services
rendered, the petition of plaintiff is in the short form
authorized by Section 5086, Revised Statutes, such petition
must be construed to contain and by implication allege, all
those facts which it would otherwise be necessary to
specifically aver in the statement of a sufficient cause of
action, and every fact thus averred by implication is
traversed and put in issue by the general denial.
2. When
by way of answer to such a petition the defendant in addition
to pleading the general denial, further alleges that the
services performed by the plaintiff were rendered and
performed by him under an express contract the terms of which
preclude the recovery of compensation therefor, such
averments do not constitute an affirmative defense of new
matter requiring a reply, and the filing of a reply thereto
does not operate to change or enlarge the issues, or to shift
the burden of proof. The legal effect of such an answer taken
as a whole, is merely to deny the cause of action asserted by
plaintiff in his petition, and the burden of proof upon the
issues thus joined rests with the plaintiff, and the court of
common pleas did not err in so instructing the jury in the
present case. (Sanns v. Neal, 52 Ohio St. 56, distinguished.)
Arland
W. Johnson, the defendant in error, filed his petition in the
court of common pleas of Lorain county, Ohio, against the
plaintiff in error, H. A. Dykeman, to recover upon an account
for services rendered and money expended.
Said petition was in the words and figures following, to-wit:
"The
first full name of defendant is unknown to this plaintiff.
"Plaintiff
is an architect located and doing business in Toledo, Ohio.
"There
is due the plaintiff from the defendant the sum of fifteen
hundred and forty dollars ($1,540.00) upon an account of
which the following is a true copy:
"Mr
H. A. DYKEMAN,
"Elyria
Ohio, Dr.
"To,
"ARLAND
W. JOHNSON, TOLEDO, OHIO.
"April
23rd, 1907.
<
table >
"There
are no credits thereon, or off-sets thereto. There is due the
plaintiff from the defendant on said account the sum of
fifteen hundred and forty dollars ($1,540.00) with interest
thereon from the 23rd day of April, 1907, at six per cent
(6%) per annum, which he claims and for which he asks
judgment.
"Wherefore
plaintiff asks judgment against defendant for the sum of
fifteen hundred and forty dollars ($1,540.00) with interest
thereon at the rate of six per cent. (6%) per annum from the
23rd day of April, 1907."
To this
petition the defendant, H. A. Dykeman, answered as follows:
"Not
denying plaintiff's business and residence as alleged in
his petition, defendant denies each and every other
allegation contained therein.
"By
way of further answer to said plaintiff's petition,
defendant says that in the month of April, 1907, at the
solicitation of said plaintiff, said plaintiff and said
defendant entered into a verbal agreement looking to the
promotion and erection of a theater building at Lorain, Ohio.
Said defendant, at that time, was the owner of certain
booking rights, which in theatrical circles is known as a
'franchise' for the city of Lorain, which were to
expire in October, 1907, and which franchise was only
valuable to said defendant in case he could procure a lease
of a theater in which to commence playing shows in Lorain,
prior to said date, to-wit, October 1st, 1907, and for which
franchise said defendant had expended a considerable sum of
money. Said plaintiff had full knowledge of these facts and desiring as well a commission, which is a
percentage upon the cost of the building for which his plans
and specifications should be furnished and including the
superintendence of its erection, which commission is very
greatly in excess of the actual cost of the production of
such plans and specifications; entered into an agreement with
the said defendant as aforesaid, to furnish plans and
specifications for a theater building for Lorain, as against
defendant's franchise rights, and that they, together,
would endeavor to secure the money by the organization of a
company and sale of stock or by such other means as were
feasible in order to build such theater.
"It
was further agreed that said building should not cost,
including the architect's commission, to exceed
thirty-five thousand dollars ($35,000.00), 'rung up,'
which is to say, 'complete and ready for use.'
"That
in the event they were successful, said plaintiff was to
receive a commission of five (5) per cent. upon the full cost
of said building. Provided always that such commission should
not raise the cost of such building above said sum of
$35,000.00.
"It
was expressly agreed and understood that, in the event they
were not successful in promoting and building such theater,
that said plaintiff should stand the cost of preparing his
plans and specifications and that said defendant should stand
the loss of such expenditures as he, himself, had made in the
effort to promote the venture.
"That,
notwithstanding the best efforts of both parties to the
agreement, they were unsuccessful, and each
took his chances with full knowledge of the circumstances.
"Said
defendant, in the loss of the money expended for the
aforesaid franchise; for an option upon certain real estate
in Lorain, in connection with the aforesaid venture, and in
the payment of personal expenses, including two trips to New
York, sustained losses fully equal to and greater than those
sustained by said plaintiff.
"Wherefore,
plaintiff prays that he may be adjudged to go hence with his
costs."
To this
answer the plaintiff filed the following reply:
"Now
comes the plaintiff and for his reply to the defendant's
answer herein admits that the defendant was the owner of
certain booking rights, which in theatrical circles are known
as a 'franchise,' for the city of Lorain, and which
was valuable to said defendant in case he could procure a
theater; that defendant had expended considerable sums of
money in procuring said 'franchise;' that plaintiff
was to receive a commission of five (5) per cent. upon the
full cost of the building in case plaintiff should furnish
superintendence of construction, in addition to the
designing, furnishing plans and specifications and letting
contracts which he was required to furnish, but plaintiff
avers that he was to receive only three and a half (3 1/2)
per cent. upon the full cost of the building in case he
should furnish the designing, plans, specifications and
letting contracts, but did not furnish superintendence.
"Plaintiff
denies all and singular the allegations in defendant's
answer contained not herein ex- pressly
admitted to be true and which are not admissions of the
statements in plaintiff's petition herein."
The
cause was tried in the court of common pleas and resulted in
a verdict and judgment in favor of the defendant H. A.
Dykeman. Error was duly prosecuted to the circuit court of
Lorain county, where the judgment of the court of common
pleas was reversed on the sole ground that said court erred
in charging the jury that the burden of proof under the
pleadings was upon the plaintiff instead of upon the
defendant. To obtain a reversal of this judgment of the
circuit court and an affirmance of the judgment of the court
of common pleas, the present proceeding in error is
prosecuted.
Mr.
Clayton Chapman and Mr. Q. A. Gillmore, for plaintiff in
error, cited and commented upon the following authorities:
Sanns
v. Neal, 52 Ohio St. 56; List & Sons Co. v. Chase, 80 Ohio
St. 42; Manufacturing Co. v. Fisher, 54 W. L. B., 422;
Simmons v. Green, 35 Ohio St. 104; 9 Cyc., 735; Serenson v.
Townsend, 77 Neb. 499; Fudge v. Marquell, 164 Ind. 447; 1
Ency. Pl. & Pr., 818; Mehurin v. Stone, 37 Ohio St. 49;
Brewing Co. v. Schultz et al., 68 Ohio St. 407.
Mr.
Lewis W. Morgan; Messrs. Stroup & Fauver and Messrs. King,
Tracy, Chapman & Welles, for defendant in error, cited and
commented upon the following authorities:
List &
Sons Co. v. Chase, 80 Ohio St. 42; Tiffin Glass Co. v.
Stoehr, 54 Ohio St. 157; Sanns v. Neal, 52
Ohio St. 56; Beverley v....
