
    No. 401
    OBERHELMAN, Exr. v. BRATE
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2716.
    Decided Dec. 28, 1925
    297. CONTRACTS — Contract for payment of rent, not required to be in writing.
    923. PLEADINGS — 1. Occupation of premises and amounts received as rent are matters of evidence and not to be pleaded.
    2.Amending petition to show time for payment does not change cause of action.
    Attorneys — Herman P. Goebel for Oberhelman; Powell Crosley and S. Geismar for Brate; all of Cincinnati.
   PER CURIAM

Lillian Brate brought this action alleging that Doeothea Voss, her aunt, deceased, had agreed to pay for half the rent of a certain house, owned by the said aunt, and extending over on to the lot of the said Brate.

The executor of the estate, John Oberhelman, filed a motion to make definite and certain by stating who occupied the house the amount of rent collected and whether or not the agreement was in writing and if in writing to attach a copy of said agreement. This motion was overruled and exception noted.

Oberhelman then filed an answer denying the allegations of the petition, and set up the statute of limitations.

Before evidence was introduced, Brate was permitted to amend the petition to show that the aunt agreed to have payment made at her death but failed to do so'. Judgment was rendered in favor of Brate and Oberhelman prosecuted error. The Court of Appeals held:

1. The contract was not such as is required to be in writing.
2. It is purely a matter of evidence as to whom occupied the premises and therefore not to be averred in the petition.
3. Amount received as rent is also a matter of evidence and not to be pleaded.
4. The amendment did not change the cause of action and was within the discretion of the court.
5. The verdict not being contrary to evidence the judgment of the Hamilton Common Pleas is affirmed.

Judgment affirmed.  