
    No. 386
    SMOLINSKI v. JAWORSKI STAFINSKI v. SMOLINSKI
    Ohio Court of Appeals, Cuyahoga County
    Nos. 4301 and 4314.
    April 16, 1923
    This opinion has not been published except in Abstract
    PLEADINGS — (1) Variance between pleading and proof — (2) Error in submitting the issues to jury not raised by pleadings.
    Attorneys — H. DuLaurenee and J. H. Read, for Imolinski; H. D. Burnett and G. S. Tenesy, for raworski; H. D. Burnett and Geo. S. Tenesy, for Itafinski; H. DuLaurenee and J. H. Read, for Imolinski.
   SULLIVAN, J.

Epitomized Opinion

These were actions for real estate commissions. The petitions set up causes of action founded upon contracts for the procuring of a purchaser for the sale of real estate which was afterwards sold. During the course of the trial it developed that the contracts between the broker and the representative owners of the real estate called for a stipulated commission for the trade or exchange of properties instead of independent contracts for the procuring Of a purchaser. The cases were tried before Judge Jowell of the Common Fleas Court of Cuyahoga ounty, and resulted in judgments for the plaintiffs. ■Fhe defendants prosecuted error. In reversing the judgments of Judge Powell, the Court of Appeals 1 leld:

1.As there was a fundamental variation between t he petition and the proof the court erred in per-i hitting such evidence to go to the jury.

I 2. Inasmuch as a power to sell does not carry with it a power to lease or exchange real estate, «he court erred in its charge when it submitted ssues to the jury not raised by the pleadings.  