
    FRIEDLY v RICHARDSON
    Ohio Appeals, 6th Dist, Lucas Co
    No 3022.
    Decided March 18, 1935
    
      Thomas H. Bierly, Toledo, for plaintiff in error.
    W. W. Campbell, Toledo, for defendant in error.
   OPINION

By CARPENTER, J.

We think the finding that the instrument in question was a deed and not a mortgage was erroneous'. The memorandum marks the deed as given to secure money to be advanced, and a reconveyance on payment of the money is required. The oral evidence does not impair the-force of the memorandum as giving that character to the deed.

The titles to the automobile mentioned in the contract was conveyed to a third person at the instance of the defendant.

That this view of this issue is correct is supported by the following authorities:

27 O. Jur., 278, 282;

Wilson v Giddings, 28 Oh St, 554;

Slutz v Larue, 28 Oh St, 371;

Helmbold v Helmbold, 25 Oh Ap 32 (4 Abs 523; 4 Abs 532).

We also think the court erred in treating the plaintiff’s claim as to the money advanced by him as an account stated and in confining the proof to whether the parties agreed upon the amount due. The amended petition sets forth items of the account as to amount, date and to whom paid. Looking back through the record it appears that much of this detail was required by the defendant by a motion to make more definite the petition, hence the amended petition.

In view of the motion and the allegations which were made as required by it, the petition stated an action for money had and received, and the allegation as to the agreement as to the amount due was merely one of evidence and could have been omitted.

Because of these errors, the judgment is reversed) and. the cause is remanded for a new trial, to the end that plaintiff may have opportunity to prove the amount of his claim, and have an order foreclosing his lien upon the real estate in question.

Judgment reversed.

LLOYD and OVERMYER, JJ, concur. c  