
    ACTION — PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    1907.]
    Winch, Marvin and Henry, JJ.
    
      Rebecca Harrison v. Herman Spitz.
    Action Ex Delicto as for Waste not Maintainable where Petition is Ex Contractu.
    
    When by her petition the plaintiff seeks to charge defendant for waste under the covenants of a lease, and her evidence fails to prove any contract of lease binding upon the defendant, evidence tending to show the defendant liable ex delicto as for waste committed is not admissible.
    Error.
    
      Kerruish & Kerruish, for plaintiff in error.
    
      Carpenter, Young '<& Stocker, for defendant in error.
    
      
       Affirmed, no op., Harrison v. Spitz, 80 Ohio St. 747.
    
   WINCH, J.

Plaintiff in error brought her action against defendant in error, seeking to charge him for waste under the covenants of a lease set forth in her petition. At the trial she failed to prove that the lease contract was binding upon the defendant, and thereupon offered evidence tending to show that the defendant was liable in tort for the waste committed. This the trial judge refused to permit her to do under her petition, holding that it stated an action ex contractu while the evidence offered was in support of a claim arising ex delicto.

In this we think there was no error, though it is urged here, as it was in the court below, that certain equivocal and ambiguous sentences and phrases, taken by themselves and disregarding all other allegations of the petition would support the theory that defendant had been guilty of a tort.

The character of a pleading is to be determined by the intention of the pleader as gathered from the whole pleading, and there is no question that the plaintiff, by her petition, intended to summon the defendant to court to answer for the breach of certain covenants of a lease. He came into court to answer that complaint and should not be held to answer another.

We affirm this judgment the more readily because plaintiff has lost nothing by it. If she wishes to bring another action to recover for the alleged tort, she can do so, for this judgment as to the contract will be no bar to it.

Judgment affirmed.

Marvin and Henry, JJ., concur.  