Ketcham v. Miller
| Decision Date | 11 April 1922 |
| Docket Number | 17037 |
| Citation | 136 N.E. 145,104 Ohio St. 372 |
| Parties | Ketcham v. Miller Et Al. |
| Court | Ohio Supreme Court |
Pleading - Actions ex contractu and ex delicto - Breach of contract - Punitive damages not recoverable, when - Trial practice - Reopening of case after parties rest - Discretion of trial court - Plaintiff permitted to reopen case - Right of defendant to introduce evidence.
1. Where a petition avers the execution of a contract, avers the value of the contract to the petitioner, avers tile breach thereof by the defendant, avers the damage to be in a sum equal to the value of the contract, the gravamen of the complaint is the breach of the contract, and the action sounds In contract, and the averment that the breach was unlawful, wilful, wanton and malicious does not change the action from one ex contractu to one ex delicto.
2. Punitive damages are not recoverable in an action for breach of contract.
3. Where in the trial of a case all parties have rested it is within the sound discretion of the trial court whether he will permit either party to reopen the case and introduce further evidence.
4. Where the plaintiff at the close of his case in chief has rested, and the defendant without introducing any evidence has rested, and the plaintiff has been permitted by the court in the exercise of his discretion to reopen his case and introduce further evidence, the case is also reopened for the defendant for all purposes.
The amended petition of the defendants in error, Frank F. Miller and Matthew R. Williams, who were plaintiffs below, alleged their residence and the residence of the plaintiff in error Nettie Poe Ketcham; that plaintiff in error was at the time of the origin of the cause of action, and had theretofore been, the owner of a certain building in the city of Toledo that plaintiff in error duly leased the building to de- fendants in error for a period of one year with the privilege of five; that they entered into possession under the lease and until dispossessed fully performed and complied with all of its terms and conditions; that the lease with its privileges was of the value of $150,000 to the defendants in error; "that on or about the 9th day of June, 1919, the said defendant, Nettie Poe Ketcham, having full knowledge of all the aforesaid, and in breach of said lease then and there in full force and effect, did unlawfully, forcibly, wilfully, wantonly, maliciously, and without the consent of these plaintiffs and over the objection and protest of each and both of them, enter upon the said premises so as aforesaid leased to these plaintiffs and take possession of the same and all of the property appurtenant thereto demised to these plaintiffs by the terms of said lease, and ejected these plaintiffs therefrom, and said defendant has ever since held and now does so unlawfully, wilfully, wantonly and maliciously keep and hold said premises, and will continue to do so, and has prevented and does now and will prevent plaintiffs from using and enjoying the same, and from making and acquiring the profits and value of said lease, and from obtaining the said extension thereof, as plaintiffs desire to do; to the damage of these plaintiffs in the sum of $150,000."
The answer of plaintiff in error admitted the ownership of the property; admitted the execution of the lease by her attorney in fact; denied the validity of the lease; charged the attorney in fact with collusion and fraud; admitted that defendants in error entered into possession under the lease and denied each and every allegation of the amended petition not expressly admitted. By way of defense plaintiff in error averred that the lease was forfeited by the defendants in error by failure to comply with certain covenants thereof.
To which amended answer the defendants in error replied, denying the violation of certain covenants of the lease, admitting the violation of certain other covenants. and pleading a waiver thereof by the plaintiff in error, denying each and every averment in the amended answer not specifically admitted, and specifically denying that they had in any way at any time violated any of the provisions of the lease.
The pleadings are voluminous.
The cause was tried to a jury and evidence was admitted tending to establish the authority of the attorney in fact to execute the lease and consent to the non-observance of certain covenants thereof, tending to prove waiver of compliance by plaintiff in error; tending to prove the value of the lease to defendants in error; and tending to prove, that subsequent to the execution of the lease to defendants in error, plaintiff in error had an opportunity to and did lease the premises to other parties at a greatly increased rental and covenanted to give possession to such parties at a period prior to the expiration of the lease held by defendants in error. The evidence further tended to prove that plaintiff in error connived against the defendants in error and their enjoyment of the possession under the lease, and by reason of her great wealth and influence employed many agencies to bring about a forfeiture of the lease by the defendants in...
To continue reading
Request your trial