
    No. 38
    WRIGHT CO. et al v. LAUBY
    Ohio Appeals, 9th Dist., Summit County
    No. 697.
    Decided Oct. 15, 1923
    297. CONTRACTS—Court has no right to declare contract illegal where its legality is not raised by the pleadings or evidence. PER CURIAM.
   Epitomized Opinion

This was an action on a note for $1,346 by the W. E. Wright Co. et al against Lauby. An answer and cross-petition was filed which set forth a breach of warranty.. The contract under which the goods in question were purchased was attached to the answer and cross-petition as an exhibit. The Fairbanks Company sold the goods to the defendant on Oct. 28, 1920.-The note in question was given May 6, 1921, about two months after the goods were deliv-eied and installed. The note was n'ot given to the Fairbanks Co., but to the plaintiff, a distributor. On Sept. 4, 1921, some of the goods were returned and credit given upon the note, and also a cash payment made. At the close of th,e opening statement the defendant moved the court for a judgixisnt. This motion was gxanted upon the ground that the contract was-contrary to the provisions of 8570 and 12464 GC. The p'aintiff thereupon prosecuted error. In rexersing the judgment of the lower court, the Court of Appeals held:

1. As the court did not have before it the necessary facts to determine whether or not the contract was illegal, ,in that the terms of the contract were not before the court, not having been introduced in evidence or set forth in the pleadings or the statement of counsel, the court had no right to arrest the case from the jury.

Attorneys — Commins, Brouse, Englebeck & McDowell, for W. E. Wright Co. et al; O. M. Roderick, for Lauby, all of Akron.  