
    Hess v. The Avon Construction Co.
    (Decided November 4, 1929.)
    
      
      Mr. Harry Hess, for plaintiff in error.
    
      Messrs. Bolsinger £ Black, for defendant in error.
   Ross, J.

This case comes into this court on error from the court of common pleas of Hamilton county, Ohio, wherein a judgment was rendered in favor of the Avon Construction Company, defendant below, predicated upon a general verdict.

The amended petition alleged a contract of employment, whereby the plaintiff in error, Harry Hess, was employed as an attorney at- law to procure for the defendant in error a loan, amount unspecified, upon the premises of the defendant in error, situated in the city of Cincinnati, Hamilton county, Ohio; the plaintiff in error to be compensated at the rate of one per cent, of the amount of such loan secured.

Plaintiff in error further alleged that services were rendered by him in conformity with his obligation under the contract, and that, before completion of the services, but after notice that a loan had been procured, the defendant in error refused to carry out its contract, to the damage of plaintiff in error in the sum of $1,300.

The answer denied the existence of the contract alleged by the plaintiff in error; and, as a second defense, alleged a contract with the plaintiff in error as broker to secure a loan for a specific amount, to wit, $185,000, commission one per cent., and that the plaintiff in error was unsuccessful in securing such loan, or an offer to make such loan, and the defendant in error was compelled to secure its loan elsewhere.

A reply was filed in which plaintiff in error alleged that he acted as an attorney at law and not as a broker.

The evidence is in sharp conflict as to whether or not the plaintiff in error was employed as an attorney at law or a broker.

There was also a sharp dispute in the evidence as to whether the contract between the parties was, as alleged by the plaintiff, one for a loan for an unspecified amount, or, as contended by the defendant in error, one for a definite amount.

No special interrogatories were propounded to the jury. The verdict was general in favor of the defendant below.

The plaintiff in error complains that the court in its charge to the jury misstated the issues, first, in that the court stated: “As the case is shaped up, it is immaterial whether Mr. Hess was acting as a broker or attorney.” In view of the fact that no defense was made on the ground that the plaintiff in error, as a broker, had not complied with the license laws applicable to brokers, we are unable to see where such statement constituted prejudicial error. If the statement is subject to criticism at all, it could only be criticized on the basis that it might be considered a comment on the evidence.

The second error in the! charge complained of was a misstatement of claim, in that the court stated that the compensation claimed by the defendant in error to have been included in the contract was one-fourth of one per cent. In view of the fact that the court elsewhere properly stated the contract, we do not think this of such a character as to constitute prejudicial error.

A third criticism is directed to the language of the charge, where the court states: ‘ ‘ The defense is what we call a confession and avoidance, because the defendant says, in substance, that they had an agreement which was conditional and not absolute and unequivocal with Mr. Hess. They say, we did agree that he could endeavor to get us a loan for a specified amount, $185,000, and if he did that he was to be paid one-fourth of one per cent, for his services in so doing.”

It is the contention of the plaintiff in error that this misstates the issue, in that the real issue presented was whether or not the contract alleged by the plaintiff in error had been entered into and performed by the plaintiff in error, and breached by the defendant in error. The defense was a denial of these issues, and an allegation of surplus matter, to wit, the execution of an entirely separate and distinct contract. As we view this matter, we consider that, if any prejudice intervened by reason of the statement complained of, it would be prejudicial to the defendant in error rather than to the plaintiff in error, in that the defense was a denial of the contract which the plaintiff in error alleged, and, under the language of the charge, the court, in stating the defense was a confession and avoidance, implied an admission on the part of the defendant in error of the contract alleged by the plaintiff in error, and an avoidance thereof by affirmative matter extrinsic thereto.

In addition, we think, taking the charge as a whole, that the court fairly presented the issues to the jury, and a reading of the record convinces us that substantial justice was administered by tbe verdict and judgment.

Finding no error in tbe record prejudicial to tbe plaintiff in error tbe judgment of tbe court of common pleas is affirmed.

Judgment affirmed.

Cushing, P. J., and Hamilton, J., concur.  