
    GREEN CAB CO v BALASCO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 11518.
    Decided April 20, 1931
    J. N. Oviatt, Cleveland, for Green Cab Co.
    Wolpaw & Wolpaw and D. H. Leboff, of Cleveland, for Balasco.
    SHERICK, PJ, LEMERT and MONTGOMERY, JJ, (5th Dist) sitting
   MONTGOMERY, J.

It is the opinion of this court that the trial 'court "did err in directing a verdict, because there was at least a scintilla of evidence, and the plaintiff was entitled to have the issues of facts submitted to and determined by the jury, and for this reason the judgment must be reversed.

It is probably unnecessary for this court to pass upon the second assignment of error, to-wit, the admission of evidence, but because counsel are entitled to have our views upon that proposition, we hold, without passing upon each assignment of error in the admission of evidence, that evidence was competent and admissible upon the part of the defendant, which would tend to shew that the written agreement was not intended by the parties to be a binding contract between them, or that it was executed for the purpose pf being exhibited to some third person, and to effect some object other than the agreement between the parties. Of course no evidence is competent which would vary the terms of a written instrument, but that is a different proposition from the one previously indicated and does not affect the rights of the defendant in error to offer evidence for the purpose indicated.

For error in directing a verdict the judgment of the Municipal Court of the City of Cleveland is reversed and this cause is remanded to that court for a new trial. Exceptions may be noted.

SHERICK, PJ, and LEMERT, J, concur.  