
    WARNER v FLEMING
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 12826.
    Decided May 8, 1933
    • Dorr E. Warner, Cleveland, for plaintiff in error.
    Geo. F. Quinn, Cleveland, for defendant in error.
   LIEGHLEY, PJ.

We are reversing this case for the reason that the court excluded the evidence offered to establish that the work done by plaintiff was of an unworkmanlike and unskillful character. The petition claimed a certain amount due and alleged that it was a fair and reasonable value thereof. The general denial traversed this claim and put in issue the value of the services and of the work done. The defendant' had a right to prove that while the plaintiff undertook certain professional services for him, the same was of no benefit and no value.

Authorities need not be cited to establish that the statute of limitations must be pleaded. It was not pleaded and for that reason was no part of the lawsuit and furnished no ground for judicial action. If the reply had set up the statute of limitations, a different question would be presented in respect to any claims asserted under the cross petition, but this situation would not preclude the defendant from the right of showing that the work done by plaintiff claimed to be of the value asserted was in fact of no value under the general issue. Bates’ New Pleading, pg. 2444.

For this reason the judgment is reversed for error of law in refusing the proof of defendant offered as toi the unskillful and valueless services rendered. Remanded, exceptions.

LEVINE and McGILL, JJ, concur.  