
    No. 71
    ZANE DEVEL. SYND. v. KURTZ et al
    Ohio Appeals. 2nd Dist. Franklin Co.
    No. 1085.
    Decided Feb. 20, 1924
    923 PLEADINGS—
    1. Objections as to joinability of express and implied contract held not properly taken after jury eliminates first cause of action.
    225. CHARGE TO JURY—
    2. No error in refusal to give special charge where matter is covered in general charge.
    3. Jury held not to be misled by court’s charge as to refusal of party to testify.
    465 4. Verdict held sustained by sufficient evidence.
    651 INTEREST AND USURY—
    5. Where the jury does not specify time from which interest is to run, the Court cannot fix the time.
    Published only in Ohio Law Abstract
    Attorneys—Vorys, Sater, Seymoure & Pease for Zane Co.; Turner & Calland, for Kurtz, et al, all of Columbus.
   BY THE COURT.

Epitomized Opinion

This was an action to recover $250,000.00 for service performed in the financing of the defendant Zane Development Co. The first cause of action was upon an express contract and the second upon an implied contract. The trial resulted in verdict for $75,00.00 with interest. The court computed interest from the date when the transactions were completed, i.e., June 6, 1920 and judgment rendered for $85,275.00. The defendant prosecuted error, claiming that the two causes of action were not joinable, that error was committed in the admission of two letters written by plaintiff after June 6, 1920 containing self serving declarations, the refusal to give certain charges, error in general charge of the court, that the verdict was not sustained by sufficient evidence and error in the calculation of interest by the trial court. In sustaining the judgment of the lower court, but modifying its judgment as to interest, the Court of Appeals held:

1. Under the liberal rule of pleading allowed in this state an express and an implied contract are joinable. Even though not joinable the objection was not well taken after the jury eliminated the first cause of action.

2. As the special charges refused were largely restatements in different form of the propositions covered by the charges actually given, no error was committed.

3. That no error was committed in the general charge of the Court in referring to the refusal of one of the defendants of the partnership from testifying as the jury was not misled by any undue influence.

4. It cannot he said that the verdict was not sustained by sufficient evidence.

5. Where there is nothing in the record from which it can be definitely' ascertained that the jury did not take into consideration the question of interest in fixing the amount of this verdict the court cannot add interest to the sum found by the jury. Therefore-the trial court erred in calculating interest from June 6, 1920 and the judgment must be modified to include interest only from the date of the judgment.  