
    KALLAY v WEIZER et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9891.
    Decided May 6, 1929
    Knight & Miller, Cleveland, for Kallay.
    A A Stephens, Cleveland, for Weizer, et.
   VICKERY, PJ.

The petition shows that plaintiff’s husband was one of the joint contractors and that she has only a half interest in that contract, and so in order to adjust the rights of these parties, it was necessary to have the husband in this suit; and the plaintiff’s petition setting up that fact shows that there is. a non-joinder of parties plaintiff. We áre told that the husband had a separate suit that is now pending in the Common Pleas Court, in which he set up this same contract and claimed to be the only contracting, party with Gardner, and that a demurrer was interposed to that petition and the court overruled it. That might well be, so far as the petition is concerned, but he might fall down when he comes to prove his contract, as there might be a variance between the proof and the allegations of his petition. But that is not the case that is before this court now. This was a petition by Mrs. Kallay suing for damages in which she claims the sum of $10,000 because the defendant below prevented Gardner from carrying out a contract for the sale of real estate, the total consideration of which was $7500, and in which she had a half interest only.

We .think the court below was right in sustaining this demurrer on two grounds; First, there was a non-joinder of parties plaintiff, and that defect appears in the petition itself; and second, there was a misjoinder of causes of action, and for that reason we think the court was right, and the judgment of the court below will be affirmed.

Sullivan and Levine, JJ, concur.  