
    No. 631
    GORISEK v. PERUSEK
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5472.
    Decided Feb. 9, 1925
    225. CHARGE TO JURY—-Court cannot take away from consideration of jury the determination of the question; whether or not there was performance on part of party in accordance with terms of contract.
   PER CURIAM.

Peter Perusek brought an action in the Cuyahoga Common Pleas against John Gori-sek and Meri Gorisek to recover on an alleged building contract, which provided that he was to make certain additions and repairs to the home of the Goriseks. The contract price was $2445 plus extras amounting to $211.13. Gorisek paid $2156.59 on account of the work. Judgment was rendered in the Common Pleas for the entire balance sued for by Perusek.

Attorneys—Austin & Kirkbride, for Gori-sek; J. L. Mihelich, for Perusek; all of Cleveland.

Perusek in his petition pleaded the contract and its performance. Gorisek plead a denial of performance under the contract, and also sought to recover for certain losses arising from default of Perusek.

Error was prosecuted from the Common Pleas judgment and it was contended that the court in his charge told the jury that Perusek is entitled to a recovery of the entire balance due. The Court of Appeals held:

1. Under the lower court’s charge, Peru-sek was relieved of his burden of proving, not only that the contract was entered into, but that there was performance in accordance with the terms thereof.

2. When court said to jury that “Perusek is entitled to a verdict for something, that in any event he is entitled to at least the balance due him on the original contract,” it took •from the consideration of the jury the determination of the question whether or not there was a performance on part of Perusek in accordance with the terms of the contract.

3. It amounted to a directed verdict in =o far as Perusek’s claim for the balance due him under the contract was concerned. The lower court committed error substantially affecting the rights of Gorisek. Judgment reversed and remanded.  