
    POLLOCK v McGINTY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9629.
    Decided Feb 25, 1929
    O D Eschelman, Cleveland, for Pollock.
    C I Erb, Cleveland, for McGinty.
   VICKERY, J.

The main error relied upon is that the court erred, in charging the jury. The request that the defendant below asked the court to give was a proper request, and had it been offered in writing and the court asked to give it before argument, we think it would have been erroneous for the court not to have done so, but the record shows that such was not the fact and an examination of the charge of the court will show that the court did practically cover the question in the general charge. It was surely so plain and distinct that a jury could not misunderstand what the issues were, and the jury having found for the plaintiff, we do not think this so-called error would be available to the plaintiff in error.

The plaintiff in error seems to think that because the defendant in error got a house that was patched up and the doors made to fit and replaced in a measure, that plaintiff was not damaged any. Well, the plaintiff bought a new house and she was entitled to get what she paid for, and she surely did not expect to get a house wherein the floors would sink eight or ten inches, which would open up all the joints in the house and make the windows and doors unsuitable and not fit properly, and putting that back by the use of jacks and placing, the house back, and then covering up the spots where the plaster was knocked off, does not, in our judgment, conform to the contract between the plaintiff and the defendant, nor do we think that the taking of a deed afterwards was a waiver of the terms of the written contract as to how this house should be built, and we think the charge of the court fairly submitted the question to the jury and we cannot see any error in this record and for that reason the judgment will be affirmed.

Levine, J, concurs; Sullivan, J, not participating.  