Morform Tool Corp. v. Keco Industries, Inc.

• Decision Date: 13 December 1971
• Parties: , 59 O.O.2d 320 MORFORM TOOL CORP., Appellee, v. KECO INDUSTRIES, INC., Appellant.
• Court: Ohio Court of Appeals

Page 207

30 Ohio App.2d 207

284 N.E.2d 191, 59 O.O.2d 320

MORFORM TOOL CORP., Appellee, v. KECO INDUSTRIES, INC., Appellant.

Court of Appeals of Ohio, First District, Hamilton County.

Dec. 13, 1971.

Syllabus by the Court

Where parties to an action advise the court, during trial, that a compromise has been reached but such contains conditions and the agreement is not thereafter consummated, the court must, if there appear genuine issues of fact existing with respect to the agreement, conduct a hearing to adjudicate the issues presented in its enforcement, or resume the trial.

Kyte, Conlan, Wulsin & Vogeler, Cincinnati, for appellee.

Steer, Strauss, White & Tobias, Cincinnati, for appellant.

SHANNON, Judge.

This is an appeal upon questions of law from a judgment of the Hamilton County Municipal Court.

Morform Tool Corporation, appellee, commenced suit upon an account against Keco Industries, Inc., appellant, seeking to recover for certain shaft adapters Morform had manufactured for the use of Keco and supplied in part. After admitting that both plaintiff and defendant were Ohio corporations, Keco denied, generally, Morform's allegations set forth in its petition. Ultimately, the case came on for trial without the intervention of a jury.

After plaintiff rested, the trial was recessed and, during the hiatus, counsel for the parties agreed upon a settlement. Basically, the agreement provided that Keco would pay an amount less than that claimed and Morform would deliver the balance of the shaft adapters. The court was advised of the compromise and informed that an entry of dismissal would be presented.

Thereafter, counsel for Keco advised counsel for Morform that the president of Keco 'would not go along with the settlement agreement.' Morform then filed a 'motion to enforce settlement agreement and for an award of interest, punitive damages and attorneys fees,' together with an affidavit in which counsel for Morform set forth his recollection of the acts and events upon which the compromise was reached. Keco, in response, filed a verified 'motion to resume trial to permit defendant to present its evidence' claiming, inter alia, that Keco's inspection of the shaft adapters to be delivered revealed that they did not meet the specifications originally agreed upon.

The court overruled Keco's motion and granted that of Morform, entering judgment for Morform in the sum agreed upon in the compromise, plus interest from the date upon which the court had been advised of the settlement. The entry is silent as to the claims for punitive damages and attorneys fees. It is from the judgment and the order overruling Keco's motion for a new trial that this appeal is taken.

The appellant assigns the following as error:

1. The court refused to grant a new trial or, in the alternative, refused to resume the trial to permit appellant to present its evidence therein that there was a failure of consideration.

2. The court refused to grant a new trial or, in the alternative, to permit appellant to present evidence in the trial that the product did not conform to specifications.

3. The court granted the motion to enforce the settlement.

4. The court abused its discretion in denying appellant opportunity to present evidence to justify its refusal to consummate the settlement.

These assignments of error raise one fundamental question. What action was to be taken by the trial judge when it was advised that the settlement apparently reached would not be consummated?

At that time, the trial was in recess. None of the issues had been determined, and absent the advice of the parties that a settlement had been reached, there was nothing to prevent the defendant...