
    FRANCES WILLARD CANDY CO. v. MENKE, etc.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1574.
    Decided Nov. 29, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1235. VERDICTS — 70. Amendments — 923. Pleadings.
    Where action is to recover for three months rental of real property and jury returns verdict for four months rental, trial court has discretion to allow amendment of petition to conform to verdict.
    Error to Common Pleas.
    Judgment affirmed.
    Watson, Davis & Joseph, Columbus, for Candy. Co.
    Miller, Miller & Snyder, Columbus, for Menke et.
   FULL TEXT.

BY THE COURT.

The action -in the court below was brought by the defendant in error against the' plaintiff in error to recover for three months rental upon certain real property at the rate of $250.00 per month. There was an additional claim for damages based upon the fact that the defendant below did not deliver up said premises in good order but left thereon a large amount of trash, which the plaintiff was compelled to remove at an expense of $276.00. The defendant thereupon filed an offer to confess judgment for $776.00. This offer was refused and the defendant answered and also filed a cross-petition for damages in the sum of $650.00. The case went to trial up.on the original pleadings, the evidence and the charge of the court. The jury returned a verdict in favor of the plaintiff for the sum of $1,000, “being four months’ rent without interest. — ” A motion for a new trial was filed by the defendant,' and the case came on for hearing, whereupon the trial court permitted an amendment to the petition to conform to the evidence and the verdict, whereby the plaintiff was permitted to make a claim for rental for the fourth month. Thereupon the court overruled the motion for a new trial, and entered a judgment on the verdict.

We have carefully considered the record and the briefs of counsel. The trial court had a discretion to allow an amendment to the petition asking for the fourth month’s rental. We are of opinion that the trial court did not abuse its discretion. The jury evidently in allowing the fourth month’s rental and in rejecting interest upon all the items of rental, undertook to dispose of the plaintiff’s as well as the defendant’s claim for damages. .This was not in a technical sense regular, hut w;e find that there was no prejudicial or substantial irregularity.

Upon a full, consideration of the case,' we ’ áre of opinion that there is no prejudicial error in the record, and that the judgment of the Court of Common Pleas should be affirmed.

(Ferneding, Kunkle and Allread, JJ., concur.)  