
    HOME SAVINGS & LOAN CO v LOVAS, et
    Ohio Appeals, 9th Dist, Summit Co
    No 2856.
    Decided June 21, 1937
    
      Motz & Morris; Akron, for appellant.
    ■ Burroughs & Burroughs, Akron, for appellee, Edward H. Heiser.
    ROBERTS and NICHOLS, JJ (7th Dist) and SHERICK, J (5th Dist) sitting.
   OPINION

By THE COURT:

The plaintiff below having recovered a judgment against all defendants below, and the trial court having sustained the motion of appellee, Heiser, for a new trial, the appellant is here complaining of the trial court’s order refusing to enter judgment in its favor upon its respective motions seasonably made in the trial court for a directed verdict in its favor against all defendants.

It is the judgment of this court that these motions should have been sustained and that the trial court erred in its refusal so to do.

The amended answer and cross-petition filed by appellee Heiser states neither a defense nor cause of action against the appellant. The appellant asks damages and that he may go hence without cost because of a fraud perpetrated by appellant’s officer or agent when he knew that his principal would not consent to the contract’s modification. It pleads both authority and a lack thereof. These claims are clearly incompatible. It pleads fraud in the inducement, but it is not prayed that the contract be reformed or cancelled.

In view of the state of the appellee Reiser’s pleading, it must be self-evident that all testimony bearing upon the authority of the company’s agent was incompetent —its purpose being to vary the terms of a written contract. It should have been excluded. Without this evidence, appellee Heiser has likewise failed to prove a cause of action or to establish a defense to the plaintiff’s case. It follows that this court must and does now enter the judgment that the trial court should have entered on plaintiff’s motions for a directed verdict. Exceptions.

ROBERTS, PJ, NICHOLS, J, and SHERICK, J, concur.  