Harper v. Miller
| Decision Date | 29 May 1957 |
| Citation | 164 N.E.2d 754,109 Ohio App. 269,11 O.O.2d 17 |
| Parties | , 11 O.O.2d 17 HARPER, Appellee, v. MILLER, d.b.a. Miller Aviation Co., Appellant. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. A petition for damages for breach of an express contract, which sets forth the terms of the contract, the performance by the plaintiff of his obligations under the contract, the breach of the contract by the defendant and damages resulting to the plaintiff by reason of such breach, satisfies all the necessary averments upon which to base a cause of action upon an express contract.
2. The fact that a charge to the jury is not addressed to the evidence does not require a reversal of the judgment, unless it is prejudicial to the party against whom it is directed.
3. A charge to the jury, which is not supported by the evidence and where the facts upon which such charge is based are not in dispute but are conceded by the parties, is erroneous, but is not prejudicial to the party against whom it is directed, and the giving of such charge does not require a reversal of the judgment.
4. In an action on an express contract, a charge which correctly states the law relating to recovery on quantum meruit for services rendered under an implied contract, which charge is applied to the facts as brought out in the evidence, is not error; and the fact that such action was grounded on an express contract does not bar recovery on quantum meruit if the jury finds that the evidence fails to prove an express contract but does prove an implied contract, under the rule laid down in such charge (that an implied contract exists for services rendered and work performed by one party for another when knowingly accepted by such other party with the obligation to pay what such service is reasonably worth).
Moore & Myers, Marion, for appellee.
Moloney & Kelly, Marion, for appellant.
This is an appeal on questions of law by the defendant from a judgment of the Common Pleas Court entered for the plaintiff in the sum of $1,914.74, plus interest.
Plaintiff, for his cause of action, states in his petition, in substance, that the defendant, at the time of the acts complained of, was the owner and operator of the Miller Aviation Company which maintains a flying school and airport at Marion, Ohio; that on or about April 15, 1950, the plaintiff and the defendant entered into an oral contract by the terms of which plaintiff agreed to work for defendant on a part-time basis at the rate of one dollar per hour, and that plaintiff should be paid for his labor on the basis of one-half in cash and one-half in flying lessons of the agreed value of eight dollars per hour; that plaintiff, pursuant to such contract, entered the employ of the defendant on the basis of the terms of the contract; that the contract was later modified by oral agreement of the parties, in the respect that plaintiff was to receive payment for his labor, entirely in flying lessons; and that, in all other respects, the provisions of the original contract as above stated were to remain in full force and effect. The plaintiff then avers that the contract was again modified by the parties and that from time to time the defendant paid and plaintiff accepted payment in money and purchases of supplies, for his labor performed pursuant to such contract.
The plaintiff then states that from April 15 to and including September 29, 1952, pursuant to such contract he worked a total of 3,225 hours and thereby earned a total of $3,225; and that in payment thereof defendant paid plaintiff $156.93 in cash and $1,153.33 in flying lessons.
Plaintiff further states that on or about September 29, 1952, defendant refused to perform his obligations under the contract, in that he refused to furnish flying lessons to plaintiff or to pay plaintiff for his labor performed pursuant to such contract and remaining uncompensated; and that there is due and owing plaintiff from defendant the sum of $1,914.74, which sum is the fair and reasonable value of the services performed pursuant to the contract.
The defendant answered, admitting that he was the owner and former operator of an airport located at Marion, Ohio, and denying all other allegations of the petition.
The first and second assignments of error are directed to the claim that the verdict is against the weight of the evidence and that the verdict is contrary to law.
We find, upon an examination of the bill of exceptions, that there is competent, credible and substantial evidence tending to prove every essential fact necessary to sustain the verdict, so that the verdict is not contrary to the weight of the evidence and the verdict and judgment are not contrary to law. We hold these assignments of error not well taken.
The third assignment is that the court erred in overruling the defendant's motion to withdraw a juror and to declare a mistrial for misconduct of counsel for plaintiff.
The court is of the opinion that the record does not support the claim of misconduct on the part of counsel for plaintiff, or that such claimed misconduct was prejudicial to defendant. Upon objection by counsel for defendant the jury was properly admonished to disregard the comment complained of. If the comment of counsel could be construed as misconduct, the timely admonition of the court was sufficient to remove any prejudicial effect of such comment on defendant's case. This assignment of error is not well taken.
The fourth assignment of error is the overruling by the court of defendant's motion for judgment on the pleadings, made at the leginning of the trial.
Defendant's motion was based upon the claim that plaintiff's petition failed to set forth a cause of action. The plaintiff's petition is one for damages for the breach of an express contract. It sets forth the terms of the contract, the performance by the plaintiff of his obligations under the contract, the breach of the contract by the defendant and damages resulting to plaintiff by reason of such breach. Plaintiff's petition satisfied all the necessary averments upon which to base a cause of action upon an express contract, and this assignment is not well taken.
The fifth assignment of error is predicated upon the same grounds advanced in support of prior assignments of error, and therefore, without further comment, we hold this assignment is not supported by the record.
The defendant assigns as his sixth assignment of error, the error of the court in giving to the jury before argument the four special...
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