
    Oberhelman, Exr., v. Brate.
    
      Contracts — Statute of frauds — Agreement by decedent to pay one-half of rentals collected — Unnecessary to plead who occupied premises or rental paid, when — Cause of action not changed by amending petition — Amendment of allegations as to time of payment — Action on claim against estate.
    
    1. Contract by one owning a house on the lot of another, to pay the owner of the lot one-half the rentals, or cause same to be paid at her death, need not be in writing.
    2. In claim for decedent’s failure to perform contract to pay, or cause to be paid at death, one-half of rentals collected from certain house on claimant’s land, petitioner need not allege who occupied premises during period in question, or what amount of rent was paid; such matters being purely evidential.
    3. In claim for decedent’s failure to perform agreement to pay portion of rent collected, allowance of amendment to petition by striking therefrom “which sum or any part thereof defendant failed to pay in lifetime,” and inserting “which sum defendant agreed to pay, or cause to be paid at her death, but failed to do so,” held not abuse of discretion.
    4. Where allegations of claim against estate are supported by proof, refusal of directed verdict is proper.
    [1] Frands, Statute, 27 C. J. § 194 (Anno.) ; [2] Pleading, 31 Cyc. p. 49; [3] Executors and Administrators, 24 C. J. §2114; Pleading, 31 Cyc. p. 415; [4] Executors and Administrators, 24 C. J. § 2191.
    (Decided December 28, 1925.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Herman P. Goebel, for plaintiff in error.
    
      Mr. Powell Grosley and Mr. S. Geismar, for defendant in error.
   By the Court.

Lillian Brate, now defendant in error, brought an action in the court of common pleas for the allowance of a claim in the sum of $1,650 and interest against the estate of her aunt, Dorothea Yoss, deceased.

The plaintiff alleged that from April 17, 1909, to April 18, 1922, the said Dorothea Yoss owned a house which she rented to tenants, which house extended over on a lot owned by plaintiff a distance of two and one-half feet; that during this period said decedent collected a rental of $20 a month for said house; that she agreed to pay plaintiff one-half the rents from the said house, but failed to make payment up to the time of her death.

Defendant below, the executor of the estate of Dorothea Yoss, deceased, filed a motion to require the plaintiff to make the petition definite and certain by stating who occupied the house in question during the said period, the amount of rent that was collected, and also to state if Dorothea Yoss agreed in writing to pay one-half the rents to plaintiff and, if in writing, to attach a copy of the agreement. This motion was overruled, and exception noted.

The defendant then filed an answer denying the allegations of the petition, and setting up the defense of the statute of limitations.

Before any evidence was offered, plaintiff moved to amend the petition by striking out the words “which sum, or any part thereof, said Dorothea Yoss failed to pay in her lifetime,” and inserting the following: “Which sum the said Dorothea Yoss agreed to pay, or cause to be paid at her death, but payment whereof she failed to make, or cause to be made.”

The court allowed said amendment to be made, the defendant being given the privilege of a continuance, but defendant proceeded to trial upon the amended petition and answer thereto.

At the close of plaintiff’s evidence, defendant moved for an instructed verdict, on the ground that no contract was proved, as alleged, and that plaintiff had failed to show the rents collected during said period. This motion was overruled, and a verdict returned for the plaintiff in the sum of $1,899.24.

A motion for a new trial was overruled, and the court entered judgment, reducing the amount found by the jury to $1,599.24,. and allowing this amount as a valid claim against the estate.

Error is claimed in the overruling of the motion to make definite and certain; in allowing plaintiff to amend the petition; and in overruling the motion for an instructed verdict; also for error in the charge of the court.

The contract was not such as is required to be in writing, or a copy thereof attached to the petition. It was purely a matter of evidence as to who occupied the premises during the period in question, and what amount was paid by the tenants and received by said Dorothea Yoss, and, therefore, not properly a matter to be averred in the petition. We find no error in the ruling of the court upon this motion.

The amendment was within the discretion of the court, as it in no way changed the cause of action. It was merely a change definitely stating a time of payment. There was evidence tending to prove the allegations of the petition so amended, and the trial court was correct in submitting the cause to the jury. The defense introduced no evidence to rebut the evidence submitted by the plaintiff, and, upon a review of the record, we are unable to say that the judgment is manifestly against the weight of the evidence.

The issues were not particularly well stated in the charge, but, taking the charge as a whole, we do not consider that the jury were misled as to the matters in issue between the parties.

Finding no error prejudicial to the plaintiff in error, the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Buchwalter, P. 'J., Hamilton and Cushing, JJ., concur.  