
    No. 312
    TAPLIN-RICE-CLARKIN CO. v. RAMSEY
    Ohio Court of Appeals, Summit County-
    No. 683.
    Jan. 17, 1923
    ACTIONS — (1) Bringing action prematurely — (2) Technical error, not prejudicial — ERROR—(3) No error committeed where a disputed contract submitted to jury; (4) Verdict against the weight of evidence — (5) Cross-examination of one of company’s officers.
    ■•^tto^neys^ — Holloway & Chamberlain, for Taplin-Rice-Clarkin Co.-; "Myers' and' Brown, for..Ramsey. ’■
   PUNK, J.

Epitomized Opinion

On Oct. 30, 1920, Ramsey filed his claim in the municipal court of Akron for labor and materials furnished in the construction of a building and asked judgment in the sum of $674.79. Defendant filed a motion to make the statement of claim more definite and certain as to dates, which was sustained. Thereupon on Nov. 15, 1920, plaintiff filed an amended petition setting forth the dates of the account, the last date being Aug. 31, 1920. Defendant then filed an answer and cross-petition. A verdict was rendered for paintiff, which on appeal to the common pleas court was sustained. Error was then prosecuted to the court of appeals, defendant claiming that the action was prematurely brought, that there was error in the court’s charge, that the verdict was against the weight of evidence, and that it was error to permit the plaintiff to cross-examine one of the officers of the defendant company. It appeared in evidence that’ no mechanic liens had been filed by the plaintiff or others, and that the plaintiff had filed no affidavit or statement as required by statute. In sustaining the judgment of the lower court, it was held:

1. Although GC. 8312, providing for the filing of a statement including all accounts is a prerequisite to the rendition of a judgment within 60 days from the date of the last item furnished or labor performed, where defendant answers to the merits and no liens appear by way of record, the defendant cannot insist that the action was prematurely brought.

2. Even if it could for any reason be claimed that the action was prematurely brought, it is clear from the record that such error would be purely technical and not prejudicial.

3. As the instant case does not present a question of construction of a contract, but a question of what was the contract agreed upon, the court properly charged and submitted the agreement to the jury.

4. As the verdict was supported by some evidence it was not manifestly against the weight of evidence.

5. As GC. 11497? authorizes the cross-examination of an officer of a defendant company, it is not' error to permit plaintiff .to call .such officer for cross-examination. ... > . •  