
    Cornfeldt v. Rihacek.
    (Decided September 29, 1930.)
    
      Messrs. Meek & Meek, for plaintiff in error.
    
      Mr. Elmer E. Davis, for defendant in error.
   Richards, J.

The parties stand in the same relation in this court as in the court of common pleas. The action was brought by Charles C. Cornfeldt to recover a balance of $2,388, claimed to be due for services as an architect and in supervising the construction of a theatre and apartment building and the equipment therefor. The trial resulted in a verdict and judgment in favor of the plaintiff fox $1,000, and the plaintiff, not being satisfied witn that amount, prosecutes error.

The defendant Maggie Rihacek, filed ■ a fourth amended answer and cross-petition and in this pleading she made certain admissions and denied complete performance of the contract by the plaintiff and the correctness of the account claimed by him. In the cross-petition she claims that the plaintiff represented and guaranteed that he was a man of much experience in the preparation of plans and the construction of theater buildings, and that she and her husband informed him that they knew nothing whatever about that kind of construction, and that they would have to rely on his experience and representations. She then sets forth, in her cross-petition, seven particulars in which the building and equipment were defective, and not in accordance with the agreement, and for such defects claims damages in the amount of $5,000.

The defendant further averred that the contract was made between the plaintiff, as party of the first part, and her husband and herself jointly, as parties of the second part, and she insisted that, being a joint contract, an action would not lie against her alone. It appears from the record that her husband died prior to the commencement of the action. Under the provisions of Section 10733, Genera] Code, the death of one joint contractor renders the contract in effect joint and several and permits an action against either the survivor or the administrator of the deceased party. Burgoyne, Admr., v. Ohio Life Ins. & Trust Co., 5 Ohio St., 586.

On the trial, the jury, by its answer to a special interrogatory, found that there was no damage due to the defendant under her cross-petition. Thereupon the plaintiff filed a motion for a new trial, and later a motion for a judgment notwithstanding the general verdict, both of which motions were overruled. The state of the evidence is such that the plaintiff was not entitled to a judgment as a matter of law for the full amount claimed, notwithstanding the answer to the special interrogatory, for some evidence was introduced against plaintiff’s claim on the issue made by the denial in the answer.

A careful examination of the bill of exceptions makes it apparent that the answer to the special interrogatory, finding that there was no damage due to the defendant under her cross-petition, was reached because of the failure of the defendant to prove specifically, except as to one item of $300, the amount of damages she claimed in her cross-petition. The verdict which was returned does not in any way respond to the issue made on the cross-petition.

Objection is made that this court cannot review the judgment on the weight of the evidence because Exhibit No. 1 is not made a part of the bill of exceptions. Although a witness was inquired of about Exhibit No. 1, the exhibit was not submitted to nor read by the jury, nor was it offered in evidence, and therefore it was not required to be made a part of the bill of exceptions.

The finding of the jury that the plaintiff was entitled to recover no more than $1,000 is manifestly against the weight of the evidence. The judgment as rendered does not accomplish substantial justice between the parties, as shown by the record, and the judgment should be reversed and the cause remanded for a new trial on all the issues.

Judgment reversed and cause remanded.

Williams and Lloyd, JJ., concur.  