
    The Main Cloak & Suit Co. v. Rosenbaum et al.
    (Decided July 13, 1931.)
    
      Mr. David, N. Rosenbaum and Mr. Stewart S. Cooper, for plaintiff in error.
    
      Mr. D. T. Mackett, for defendants in error.
   Ross, P. J.

This case, constituting a consolidation of two eases originating in the municipal court of Cincinnati, comes into this court on error from the court of common pleas of Hamilton county, Ohio, wherein the judgments of the municipal court of Cincinnati were affirmed.

These cases were tried without a jury and judgment was rendered against Isaac Rosenbaum. Sarah Rosenbaum was dismissed at the close of the evidence of plaintiff in the municipal court.

One of the amended bills of particulars, each being substantially the same except for the amounts, alleges, in part, as follows:

“Plaintiff says that there is due from the defendants the sum of Seven Hundred and Six Dollars and Thirty-eight ($706.38) Cents for merchandise sold and delivered on the dates and to the parties hereinafter set forth. Plaintiff says that said merchandise was sold and delivered to said parties upon orders issued to plaintiff by said defendants. Plaintiff further says that said defendants promised to pay plaintiff for said merchandise, furnished to said parties at defendants’ request, the sums set forth after the various items of merchandise listed hereinafter.
“Wherefore, plaintiff prays judgment against said defendants in the sum of Seven Hundred and Six Dollars and Thirty-eight (706.38) Cents, with interest from the first day of July, 1930, and for its costs herein expended.”

The defenses were general denials.

The evidence shows that for a period of three years Isaac Rosenbaum collected from the customers of his business more than $62,000, which he deposited to the credit of his wife, and that she had no separate source of income; that all bills incurred by Isaac Rosenbaum were paid by his wife, by her personal check; that Sarah Rosenbaum authorized extension of credit to customers, and adjusted claims due to Isaac Rosenbaum; that Isaac Rosenbaum referred various persons to his wife for adjustment of his claims against them; that both of them kept the books of the business; that she stated to creditors: “We will see that you get a check.” There is also evidence that Sarah Rosenbaum stated that she was “right with her husband in all business and * * * is the one taking care of the financial end of it.” The president of the plaintiff in error stated that it was upon the financial standing of Sarah Rosenbaum that credit was extended to Isaac Rosenbaum.

These facts showed that Sarah Rosenbaum held herself out to the plaintiff in error as at least a partner in the business, if not the dominant owner of the same, and that she is now estopped to deny such relationship as to plaintiff in error, even though it may now be shown that no actual partnership existed.

It is urged, however, that the amended bill of particulars did not allege that the claim of plaintiff in error was based upon estoppel, but, on the contrary, alleged that Sarah Rosenbaum was directly liable to plaintiff in error for the debts sued upon.

Section 1558-12, General Code, provides: “The bill of particulars and statement shall set forth in plain and direct language the facts constituting the cause of action, setoff, counterclaim, or defense.” And following this, paragraph 4 of that section provides: “T;o expedite the business and promote the ends of justice the judges may from time to time adopt, publish, and revise rules relating to the matters of practice and procedure, classify the causes of action in the court, and prescribe with reference to each class the degree or particularity with which cause of action, setoff, counterclaim, or defense, shall be set up.”

We are not cited to any rule of the municipal court of Cincinnati containing any requirement applicable to the question here.

In the case of Globe Indemnity Co. v. Wassman, 120 Ohio St., 72, 165 N. E., 579, the first paragraph of the syllabus is: “In order to avail himself of proof of a waiver or estoppel a party, having opportunity therefor, must allege in his pleading facts invoking that equitable relief.”

On page 87 of 120 Ohio State, 165 N. E., 583, Judge Jones says: “This court has established the principle that, in order to avail himself of proof of a waiver, or estoppel, a plaintiff, having opportunity to do so, must allege in his pleadings facts invoking that equitable relief. Eureka Fire & Marine Ins. Co. v. Baldwin, 62 Ohio St., 368, 57 N. E., 57; Schurtz, Admr., v. Colvin, 55 Ohio St., 275, 45 N. E., 527; Metropolitan Life Ins. Co. v. Howle, 68 Ohio St., 614, 68 N. E., 4; List & Son Co. v. Chase, 80 Ohio St., 42, 88 N. E., 120, 17 Ann. Cas., 61. It frequently happens that a case may assume an aspect where a plaintiff, instead of setting up an estoppel in his petition, pleads it in his reply.

"While such rule may be applicable to practice in the courts of common pleas, where the rules of procedure must be adhered to more strictly, we hold that it is inapplicable to practice in the municipal court, where it was designed and contemplated by the Legislature that substantial justice under liberal rules of pleading should be secured, unhampered by the application of technical rules of practice.

We conclude that to hold otherwise in the instant case would be to lend the offices of the courts to the perpetration of a plan, the ultimate result of which is to deprive creditors of the defendants in error of a security upon which they were induced to rely by the acts of those liable for the indebtedness.

As to Isaac Rosenbaum the judgments of the municipal court of Cincinnati and of the court of common pleas will be affirmed. As to Sarah Rosenbaum, these judgments will be reversed, and the causes remanded to the municipal court of Cincinnati, through the court of common pleas, for new trials according to law.

Judgment affirmed in pari and reversed in part.

Cushing and Hamilton, JJ., concur.  