Vnerakraft, Inc. v. Arcaro

• Decision Date: 11 May 1959
• Citation: 168 N.E.2d 623,12 O.O.2d 229,110 Ohio App. 62
• Parties: , 12 O.O.2d 229 VNERAKRAFT, INC., Appellee, v. ARCARO, Appellant, et al., Appellees. *
• Court: Ohio Court of Appeals

Page 62

110 Ohio App. 62

168 N.E.2d 623, 12 O.O.2d 229

VNERAKRAFT, INC., Appellee, v. ARCARO, Appellant, et al., Appellees. ^*

Court of Appeals of Ohio, Hamilton County.

May 11, 1959.

Syllabus by the Court.

A Court of Common Pleas has authority to find that a person formerly adjudged an incompetent is competent at a subsequent date.

Nieman, Aug, Elder & Jacobs, Cincinnati, for appellee Vnerakraft, Inc.

Richard T. Carroll and Norbert J. Bunke, Cincinnati, for appellees Paul William Weisgerber and Mary Carol Weisgerber.

Goodman & Goodman and Louis J. Kull, Cincinnati, for appellant Harry Arcaro.

Tischbein & McDaniel, Cincinnati, for appellee George E. Tischbein.

O'CONNELL, Judge.

In 1957, the appellant, Arcaro, entered into a contract with Paul William Weisgerber to build a house on Lot No. 5 of Spirito Subdivision in Green Township, owned by Paul William Weisgerber and his wife, Mary Carol Weisgerber. Acting as general contractor, Arcaro entered into numerous contracts with various subcontractors, materialmen and laborers for various items of material and labor used in the construction of the house. Among such subcontractors was Vnerakraft, Inc., the appellee herein, who filed an action to recover the sum of $1,059.79 from the appellant and to foreclose a mechanic's lien acquired by the appellee on the property of Paul William Weisgerber and Mary Carol Weisgerber.

The construction of the house was financed through the Twenty-Third Ward Building Association Company, whose mortgage on the premises was in the sum of $16,000.

Upon the completion of the dwelling, Acaro failed to pay the plaintiff and other subcontractors, materialmen and laborers, who filed and perfected mechanics' liens to secure the balance due for the work and material claimed.

The Twenty-Third Ward Building Association Company paid out during the course of construction almost all of the $16,000, including $2,510.18 directly to Arcaro, who also received $350 from the Weisgerbers. The balance still held by the building association company is in the sum of $770.30.

Answers were filed by all parties defendant to this action, including one by Louis J. Kull, guardian for Arcaro, in which it was alleged that Arcaro has been under guardianship since 1934 and that the contracts made by him were void.

An application for guardianship on behalf of Arcaro was made on October 15, 1934. It is to be found in Guardianship Docket 30, page 87, Case Number 125488, Probate Court Records. This application was for a guardianship for an incompetent veteran who was entitled to a federal pension of $100 a month.

Likewise, on October 23, 1934, the Probate Court by entry found that Arcaro was an incompetent veteran and incapable of handling his own affairs.

The trial court in its opinion held that many witnesses expressed the view that at the time the contract was made Acaro showed no signs of mental incapacity; that, by a preponderance of the evidence, he had been in the contracting business, had built many homes, and had held himself out as a building contractor; and that there was no indication of any mental illness when he signed the contract with the Weisgerbers or when he made his contracts with the subcontractors.

The trial court therefore found that the preponderance of the evidence indicated...