
    Middleport Woolen Mills Company v. Titus.
    1. Where money has been paid on a contract which has heen subsequently rescinded, and the repayment of the money is the only thing remaining to be done, apetition for money had and received is sufficient; but while the-contract is subsisting, the action can only be brought on the agreement.
    2. Where it is alleged that the court of common pleas erred in various particulars, among others, in overruling a motion for a new trial based on the ground that the verdict was against the evidence, and the district court reverses the judgment without setting forth the ground of reversal, and remands the cause for a new trial, and it appears that the evidence was conflicting as to a material point in issue, and that the charge to-the-jury was in some respects obscure, the judgment of reversal should not be reversed, even if, in the opinion of this court, the preponderance-of evidence be in favor of the verdict, and although the other errors-may not have heen well assigned.
    Error to the District Court of Meigs county.
    On April 11, 1874, James N. Titus filed a petition in the Court of Common Pleas of Meigs county, against the Middleport Woolen Mills Company, which, omitting commencement, was as follows ; The plaintiff says that the defendant is a body corporate created under the laws of Ohio, and was on the first day of January, 1871, indebted to the plaintiff in the sum of ten thousand dollars, for so much, money, at divers times, before that time had and received hy the defendant to and for the use of the plaintiff, and which sum of money was then due and payable ; yet the defendant has not paid the same or any part thereof to the plaintiff, though often requested so to do ; whereupon, the plaintiff prays for judgment against the defendant for said ■sum of ten thousand dollars, together with interest thereon •from, etc.
    The company, by its answer, admitted the receipt of ten thousand dollars from Titus during the year 1870, but .alleged, among other things, that he paid the money for •.shares to that amount in the capital stock of the compauy, under a contract in writing made January 21, 1870; and that it performed all the stipulations of its contract, and was at all times ready, able, and willing to deliver to Titus its capital stock to the amount of $10,000, and did tender and offer to so deliver the same, and is now ready, able, and willing to so tender and deliver said stock, being stock representing part of the original stock of the company, of all which Titus had notice.
    Titus, in his reply, denied all averments in that part of the answer set forth, except that he signed the agreement therein referred to, and paid to the company $10,000 under the same.
    Other matters in the answer and reply need not be here stated.
    The case was tried to a jury at the February term, 1875, and a verdict was rendered for the company. A motion for a new trial based ou the ground, among others, that the verdict was against the weight of evidence, was overruled by the court, and judgment was rendered on the verdict. A bill of exceptions, setting forth all the evidence and the charge to the jury was then taken.
    A petition in which numerous errors are assigned, among others, that the verdict was against the weight of evidence, was filed by Titus in the distinct court; and that court, at i's April term, 1876, reversed the judgment, and remanded the cause to the court of common pleas for a new trial. The ground of reversal is not stated in the record.
    A petition in error was, on leave, filed in this court to reverse the judgment of reversal.
    It appears from the record that the plaintiff in error was incorporated as a manufacturing company, under the laws of this state, in 1867, with a capital of $50,000. The officers and stockholders desired to increase the capital stock to $100,000. On January 21, 1870, Titus entered into a contract in writing with the company, whereby he agreed, among other things, to pay to the company $10,000 for shares to that amount in the capital stock of the company. He paid to the company the sum agreed on, during the year 1870, but has never received the stock, though he demanded it before bringing suit. The agreement does not specify whether the stock was to be original or increased ■stock; but Titus offered evidence tending to show that, in view of the subscriptions which had been made to the original stock previous to the time when he entered into the contract, and in view of the disposition made of the profits, the contract for $10,000 in shares had relation to increased stock alone.
    Previous to April, 1870, Titus paid to the company $4,000 on the contract. Application was then made to the secretary of state, with a view to such increase; but that officer informed the company, in April, 1870, that payment in money of the full amount of such increase was indispensable to the grant of a certificate of such increase. When this information was received, it was made known to Titus. John Schreiner was then not only a director, the secretary and the treasurer of the company, but its general managing agent.
    On the trial, evidence was offered by each party upon the question whether it was agreed between the company and Titus, on receipt of the letter of the secretary of state, that if he would pay to the company the balance of the $10,000, it would repay the whole sum, with interest, unless the company furnished him increased stock to that amount, within a reasonable time. Evidence was also given tending to show that Titus was to wait for his stock until the necessary increase could be made up by profits; hut Titus, in his testimony, denies that there was any such agreement. There was also evidence to show, that since the commencement of the suit, the company had purchased of one of its stockholders $10,000 in shares of the original stock, and tendered the same to Titus, and that he had refused to accept the same. The capital stock has never been increased.
    
      John Welch, Grosvenor & Vorhes, and Martin Hays, for plaintiff' in error.
    
      F. A. Guthrie, for defendant in error.
   Okey, J.

In Durbin v. Fisk, 16 Ohio St. 533, it was pi’operly held, that “ a plaintiff can recover only on the causes of action stated in his petition. It is not the province of a reply to introduce new causes of action. This can only be done by amendment of the petition.” If causes have sometimes been so presented, on error, that a court was uuwilling to reverse, although they had been tried on the issues made by the answers and replies, this has never been done unless it plainly appeared that the departure had occasioned no prejudice, and that to give effect to the issue thus made would be in furtherance of justice. There is also a class of cases in which it has been held that a defective statement in a petition may be aided by averment in a subsequent pleading. Erwin v. Shafer, 9 Ohio St. 43; Dayton Insurance Company v. Kelly, 24 Ohio St. 345, 357. But this case does not fall within any such exception to the rule; and, therefore, Titus’ right to recover must rest alone on the ease made in the petition.

By the code of civil procedure, in which the common law forms of pleading were abolished, the petition, answer and reply must contain facts, concisely stated. If, as is sometimes the case, a cause of action may be properly set ioi’th in a petition in substantially the same form as in a declaration, it is not because of the sufficiency of the pleading under the former system, but for the reason that its language is in accordance with the facts in the particular case. In this case the petition is, substantially, in the form of a count in a declaration in assumpsit or debt for money had and received. If the contract between Titus and the company is subsisting, it is quite clear there can be no recovery upon this petition, for it can not be regarded as founded on the written contract. Swan’s PI. and Pr. 57; and see Bliss on PL, § 156 et seq. But if the contract has been terminated, and the only thing that remains to be done is for the company to pay and Titus to receive $10,000, with interest, there can be no objection to a recovery under this petition.

Titus testified, in substance, that after he had paid to the company $4,000, in pursuance of the contract, and the letter of the secretary of state had been received, it was agreed between him and the company, ih April, 1870, that if he paid the balance, the company would refund to him the $10,000, with interest, if it failed to deliver to him increased stock to that amount within a reasonable time. This is denied by the company, and the evidence upon the question is conflicting. It is not denied, however, that the balance of the money was paid by Titus; that more than three years had elapsed from that time before this suit was brought; and that the capital stock of the company has never been increased.

The ground upon which the district court reversed the judgment of the court of common pleas is not stated in the record. It may have been upon the ground that, in the opinion of that court, the parties had, according to the weight of evidence, put an end to the contract, and hence that Titus might recover on this petition. Assuming that to have been the ground, as in our opinion we' may, we do not find it necessary to determine whether, in. so holding, the district court was clearly right. In Schaeffer v. Marienthal, 17 Ohio St. 183, it was held that this court had authority to reverse a judgment of reversal rendered by the district court, although the cause had been remanded to the court of common pleas for a new trial. The correctness of that holding is no longer an open question, for the decision has been repeatedly followed (Craig v. Chambers, 17 Ohio St. 253 ; Hammond v. Hammond, 21 Ohio St. 620; Dean v. King, 22 Ohio St. 118; Texas B. Association v. Aurora, etc., Ins. Co., 34 Ohio St. 291), and the legislature has twice re-enacted, without change, the statutory provisions on which the decision was founded. Rev. Sbat., §§ 6707-6710. But these cases show that where the court of common pleas overrules a motion for a new trial, based on the ground that the verdict is not supported by the evidence, and the district court reverses the judgment for that reason, and remands the cause for a new trial, this court will not reverse the judgment of reversal, “ unless it clearly appears that the verdict was sustained by the evidence.” And this rule has greater fofee in a ease like this, where doubts may well be entertained whether the lengthy and somewhat confused charge did not mislead the jury.

The view we have taken of this case renders it unnecessary that we should determine the important questions discussed by counsel, or express any opinion as. to the real merits of this case in any particular.

Judgment affirmed.  