
    FERGUSON v. PIERSON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    W. A. Rinckoff, Cincinnati, for Ferguson.
    Kelley & Remke, Cincinnati, for Pierson.
   CUSHING, J.

TRIAL.

(590 Cbl) Submitting issue to jury for its determination, where question was not made an issue in the case, held erroneous.

(590 Cel) In action to recover damages for breach of contract, where plaintiff failed to show that he had done anything toward carrying out his part of contract, fact that court erroneously charged on issue not made by pleadings or used improper languauge held immaterial, where judgment was entered for defendants.

CONTRACTS.

(150 D) To recover damages in action for breach of contract for purchase of house plaintiff, in order to recover difference between actual cost of house and selling price, must establish by preponderance of evidence that he performed, or attempted to perform, his part of contract.

(Hamilton, PJ., and Mills, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.  