
    No. 341
    WIENER v. KRUMROY
    Ohio Appeals, 9th Dist., Summit Co.
    Decided May 28, 1925
    465. ERROR — Where facts connected with the execution of a contract are in dispute, the failure of the court to construe the contract before submission to the jury is not prejudicial error.
    Judges Richards, Williams and Young of 6th Dist., sitting.
    First Publication of this Opinion
    Attorneys — Herberich, Burroughs & Bailey for Wiener; Schwab & Heiser for Krumroy; all of Akron.
   YOUNG, J.

This action was originally begun in the Akron Municipal Court where a judgment was rendered in favor of G. E. Krumroy. The case was appealed to the Summit Common Pleas and upon trial, the jury returned a verdict for Krumroy. J. H. Wiener now brings error to this court for a reversal of the lower court.

Krumroy claims that Wiener employed him to repair a building which had been damaged by fire; that he made an estimate in writing of the cost of repairs; that same was accepted and the repairs made. Wiener contends that he and Krumroy entered into an oral contract ande a price agreed upon and further that Krumroy failed to carry out the contract and by way of cross-petition prays damages. Krum-roy denies that he was to furnish any other items than those listed in the contract marked Exhibit A.

The Court of Appeals held:

1. There is considerable variance in the testimony as to whether the Exhibit A., which was an estimate of labor and materials, formed the basis of the contract; Wiener contending that he never signed said paper.

2. Wiener contends there was no evidence that Krumroy had performed the obligations of his contract and that he failed to prove the allegations of his petition. We are of the opinion that the evidence showed substantial performance.

3. Further contention of Wiener is that the court erred in construing Exhibit A., which is alleged to be the basis of the claim; that there was no evidence, that he never executed same, and that it was error to let same go to the jury.

4. It is the duty of the court to place a legal construction upon written contracts, an! while the court might have erred in not doing so, there was enough disputed facts as to execution to permit it to be determined by the jury. Therefore there was no error.

Judgment affirmed.

(Richards, PJ., and Williams, J., concur.)  