
    No. 391
    TATMAN v SNYDER
    No. 19040.
    Supreme Court
    Motion to direct Hamilton Appeals to certify. Dock.
    March 25, 1925.
    3 Abs 214.
    225. CHARGE TO JURY—Is it province of charge to give jury authority to consider terms of former contract admitted in pleadings as matters of fact?
    Attorneys—Ireton & Schoenle for Tatman; Wm. R. Collins for Snyder; all of Cincinnati.
   John Snyder brought the original action in the Hamilton Common Pleas against Wm. Tat-man, on a contract upon which there was a dispute as to the terms. A verdict was returned and judgment thereon was rendered in favor of Snyder for the full amount claimed. Error was prosecuted and Tatman claimed that according to the testimony of Snyder himself, the man who contracted to do the work, it was admitted that he had agreed to do it under the same provisions as a contract for a former job.

Tatman contended that the issues were admitted in the pleadings, and confirmed by the evidence, but nevertheless the trial court in its charge submitted these issues for the jury to determine them as matters of fact, violating the rule laid down in Telinde v Ohio Traction Co., 109 OS. 125, 128, 129. The Court of Appeals affirmed the judgment of the lower court and the case was taken to the Supreme Court on a motion to direct the Court of Appeals to certify the record.

Tatman contends that the jury was authorized by the trial court to find against him, even though Snyder did not comply with the terms of the contract as admitted in the pleadings, leaving the finding of the terms of that contract to the jury, and telling it to find a verdict accordingly.

Also that in submitting a ease to a jury it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require; and it is also the duty of the court to distinguish between and call the attention of the jury to the material allegations of fact which are admitted and those which are denied. B. & O. Rd. Co. v Lockwood, 72 OS. 586.  