
    No. 946
    WOLFLEY et v. THOMAS et
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1359.
    Decided April 23, 1926
    923. PLEADING — Where averments of fact are omitted from a petition and are afterwards made issues by the answer and reply, the defects in the petition are not- available as grounds of reversal.
    Note — Motion to certify overruled, 4 Abs. 757.
    Attorneys — O. R. Crawfis and F. S. Mon-nett for Wolfley; Watson, Davis & Stouffer for Thomas; all of Columbus.
   BY THE COURT.

This action was brought upon contract by J. T. Wolfley et against certain stockholders of a corporation, and sought to recover against them individually. A demurrer was filed in the Franklin Common Pleas as to the sufficiency of the petition and also upon defect of parties defendant, both of which were overruled. Defendants answered and a reply was filed and the case sugmitted to a jury which returned a verdict for Thomas et.

Wolfley filed a motion for a new trial which was overruled. Upon error proceedings, the Court of Appeals held:

1.The petition is unusual because from a technical standpoint it is insufficient both because it lid not set out the contract and certain stockholders referred to in the petition were not made parties defendant.
2. The demurrer being overruled the defendants in their answer set out a claim that the contract was made by the corporation and not by stockholders. The reply denies this, so defendants had a trial on this issue.
3. It is well settled that where an averment of fact is omitted from a petition and is afterwards brought in issue by the ánswer and reply, the defect in the petition is not available for grounds of reversal.
4. In respect to the alleged defect as to joinder of parties the answer admits those named as stockholders and does not deny the allegations that others could not be served ond therefore admitted it as true.
5. The principal defense in the court below, i, e., that the contract was made by the corporation and not by the stockholders, is for the jury and not the reviewing court to decide.  