
    Markward & Niman v. Frederick Doriat.
    1. Where, in an action for the breach of a contract, the answer denies the contract, as stated in the petition, and sets forth the contract sued upon in different terms, and claims damages for its breach, a verdict that the defendant is entitled to recover of the plaintiff a specified sum, is sufficiently responsive to the issues. It, in effect, finds that the contract was as set forth in the answer, and not as set forth in the petition.
    2. Where the record shows that judgment was entered on a verdict, and before a motion to set aside the verdict was made, and it not appearing that the motion was made within three days after verdict, it is not error in the corn-t not to notice the motion.
    3. Where a party desirous of a second trial under the statute (S. & O. 1155) did not “ at the term of the court at which judgment was rendered, enter on the records of the court notice of his demand for such second trial,” the omission cannot be supplied at a subsequent term, by the finding of the court that at the term at which judgment was rendered such notice of demand for a second trial was given by the party, and that the court entered a minute of the same on the court docket with a minute of its opinion that the case was one in which the parties were entitled to a second trial, and of the allowance of the same, and of the amount of the second trial bond, and that the bond was accordingly executed and filed, and approved by the clerk within the time .limited, in that behalf, after the term at which judgment was rendered. And the omission is not affected by an order of the court at such subsequent term, that the journal entry of the previous term be corrected according to the facts as found hy the court, and, when so corrected, stand for and as the entry of the former term.
    Error to the district court of Putnam county.
    Markward & Niman brought their action in the common pleas against Doriat to recover damages for the alleged breach of a contract between the parties, by which Doriat sold and was to deliver to Markward & Niman a certain quality and quantity of walnut lumber, at a specified price.
    Doriat answered, denying the terms of the contract as stated in the petition, and setting forth the contract as he claimed it; and, by way of counterclaim, alleging breaches on the part of the plaintiff, for which he asked damages.
    The reply denied the material averments of the answer.
    At the October term, 1867, of the common pleas, the issues were tried to a jury, and the verdict was “that the defendant is entitled to recover of the plaintiffs the sum of $286.65,” and judgment was entered.
    Thereupon the plaintiffs moved to set aside the verdict, on the ground that it was contrary to the instructions of the court and the weight of the evidence.
    At the' February term, 1868, to-wit, February 10th, the cause having been placed upon the second trial docket, the defendant moved to strike it from the docket, for the reasons : 1st. That the action had been tried, and verdict and judgment rendered, at the previous October term, and that no notice of any demand for a second trial by either party was entered at that term as yet on the records of the court; and that it does not appear from the records of the court that any notice of a demand by the plaintiffs for a second trial Avas given. 2d. That no opinion of the court, allowing a second trial in the case, has at any time been entered on the journal of the court.
    On February 11, 1868, the plaintiffs moved the court for an order to supply an omission of the clerk, at the October term, 1867, in making the entry in the case ; the words proposed to be supplied being these : “ And thereupon came the plaintiffs and demanded a second trial of said cause; and the court being of thé opinion that this cause is one in which a second trial may, of right, be demanded, do allow the same, and order the plaintiffs to enter into a bond therefor, in the sum of six hundred dollars, conditioned according to law.’’
    The court, at the instance of the plaintiffs,/disposed of their motion first; and found that, at the October term, 1867, the plaintiffs, in open court, demanded a second trial of the cause, and the judge then and there entered upon the court docket, in his own hand, a minute of that fact; that the court thereupon, being of the opinion that the cause was one in which the parties were entitled to a’ second trial, allowed the same, and ordered the plaintiffs to enter into a bond for a second trial, in the sum of six hundred dollars, conditioned according to law, and made a minute of the order on the court docket of that term. That after the entry of these minutes upon the docket, the defendant’s attorney furnished the entry to the clerk, as the same appears upon the journal of the court. That on the 15th November, 1867, the plaintiffs entered into a bond, according to law, for a second trial, and the bond was duly filed and approved by the clerk within thirty days after the adjournment of that term of court. The journal entry of the judgment was furnished and entered on the last day of court, and there was no formal meeting of court afterward; but no entry of notice or demand for a second trial was furnished the clerk by the plaintiffs, or any one else, for entry; and the clerk omitted at that term to enter on the journal or records of the court the demand for a second trial, and the finding and order of the court in regard thereto, as minuted on the court docket. Thereupon the court sustained the motion of the plaintiffs, and ordered that the journal entry of the former term should be corrected by supplying the clerk’s omission, and, when so corrected, should stand for and as the entry of the former term. The correction was made accordingly ; and the defendant excepted.
    Thereupon the defendant’s motion was sustained by the court, on the ground that said matters were not entered upon the journal at the term at which the judgment was entered, and the cause was ordered to be stx-ickexx from the second trial docket.
    The plaintiffs excepted, and filed their petitioxx in erx’or ixx the district court, alleging error ixx the conxmoxx pleas in this : (1.) The jury did xxot pass upon the issues presexxted by the- petition. (2.) The court rendered judgmexxt without passing upon the motioxx of plaintiffs to set aside the verdict of the jury. (3.) The court ex-red in sustaining the motioix of defendants to strike the cause from the second trial docket, and in striking the cause from the docket.
    The district coxxrt, on error, affirmed the action of the court below. To reverse the order of the common pleas, axxd the judgmexxt of the district court, is the object of the present petitioxx in error.
    
      D. Dirlam for plaintiffs in error:
    S. & C. Stat. 1155, secs. 1, 4; Stat. of 1841, p. 682; Code, secs. 2, 137, 138, 304, 588, 590, 534; Wilson v. Holeman, 2 Ohio, 254; Oliver v. Pray, 4 Ohio, 175; Bliss v. Long, 5 Ohio, 276; Torbet v. Coffin, 6 Ohio, 33; Bradley v. Sneath, 6 Ohio, 490; Moore v. Brown, 10 Ohio, 197; Hubble v. Renick, 1 Ohio St. 171; Irwin v. Bank of Beliefontaine, 6 Ohio St. 81, 87; Huber v. Cherry, 17 Ohio St. 562; S. & C. 1148, sec. 662; 1149, sec. 664; 1159, secs. 705, 706.
    
      Swan & Moore for defendant in error :
    Swan’s Pl. and Pr. 120, 121, 126, 128; Code, secs. 83, 280, 300, 691, 703, 712; 8 Blackf. 385; 1 Blackf. 12, 51; Jones v. Julian, 12 Lardner (Ind.), 275; Downey v. Hicks, 20 Curtis (U. S.) Rep. 156; Roach v. Huling, 14 Curtis’ (U. S.) Rep. 318; Hanly v. Levin, 50 Ohio, 227; Martin v. Clinton Bank of Columbus, 14 Ohio, 197; Swank v. The State, 3 Ohio St. 436; Calvin v. The State, 12 Ohio St. 72; Franks v. The State, 12 Ohio St. 7, 8; Moore v. Brown, 10 Ohio, 197; Landen v. Reed, 10 Ohio, 202; Hubble v. Renick, 1 Ohio St. 172; Huber v. Cherry, 17 Ohio St. 562; Swan’s Stat. of 1841, p. 119.
   By the Court

Held:

1st. The verdict is sufficiently responsive to the issues. It, in effect, finds that the contract was as set forth in the answer, and not as set forth in the petition.

2d. There was no error in the common pleas not noticing the motion to set aside the verdict. The motion was made after judgment, and there is nothing to show that it was-made within three days after verdict.

3d. The court did not err in striking the case from the-second trial docket. The plaintiffs did not, “ at the term of the court at which judgment was rendered, enter on the-records of the court notice of his demand for such second trial,” as provided by statute. S. & C. 1155, sec. II. The-proceedings at the subsequent term to supply this omission,, could not have that effect. It was too late.

Judgment affirmed.  