
    The First National Bank v. Jahn.
    • Mutual accounts — Settlement of in court of common pleas — Agreement by parties to account stated — Under mistake of facts— Appeal by either party — Will lie to circuit court, when.
    
    Where, in an action in the court of common pleas for the settlement of mutual accounts, it appears by the pleadings that the parties had agreed to an account stated, which one of the parties now alleges was induced by mistakes of fact, and the parties are unable to come to an agreement because of such mistakes of fact, said mistakes consisting of one party giving credits to which the other party is not entitled, and which he denies, and a settlement cannot be reached without the correction of the mistakes and restating of the account stated, an appeal will lie to the circuit court by either party to the controversy.
    (No. 12273 —
    Decided February 6, 1912.)
    Error to the Circuit Court of Henry county.
    The case in the court of common pleas, for the plaintiff in error, is stated in its amended petition as follows:
    “Now comes the above named plaintiff and by leave of the court first obtained, files this, its amended petition, and says that it is a corporation duly organized under the laws of the United States for the purpose of carrying on a general banking business at Napoleon, Henry county, Ohio; that the said plaintiff and the said defendant, George H. Jahn, had mutual dealings running through a period of several years, and said plaintiff and defendant have kept books of account concerning said dealings, which said accounts and the items thereof extend to a very large number, and that the aggregate of such items exceed the sum of thirty-eight thousand dollars; that the plaintiff and defendant have been trying to adjust said items of account, but because of a mistake in fact and oversight made in said account, which mistake in fact and oversight in said account was carried from time to time in the account of both plaintiff and defendant, and they have been unable to adjust or settle their said accounts for the reason that the defendant claims that upon the adjustment and settlement of said accounts there is a balance of twenty-seven dollars and fifty-six cents due him, and the plaintiff claims that it cannot settle said accounts until said mistakes of fact and oversight in said accounts have been corrected and passed upon by the court, and the plaintiff says that it will be utterly impossible for it and the defendant to agree as to the correctness of said items of account and to settle and adjust the same between themselves. Plaintiff, therefore, prays that the defendant may be ordered to come to an account touching the said items of account; that the plaintiff may be let in to prove any error in said account and that after an account has been had between said parties that a judgment may be had between said parties in accordance with the facts ascertained in the rendering, correcting and settling of said account and for all other proper relief in the premises.”
    The defendant, Jahn, answered this amended petition, by saying, in substance, that the only dealings he had with the plaintiff bank were as one of its depositors; that he made cash deposits from time to time and checked against the same in accordance with the regular and ordinary mode of depositing and checking on his account; that the bank provided defendant with a pass book which he kept in his possession, in which all transactions between him and the bank were entered by it; that on the 6th day of June, 1906, after defendant had become a depositor, the bank rendered an account and struck a balance and the bank and defendant made a settlement of their accounts in full to said date, which settlement showed a balance due defendant of $872.77, to which balance both parties then agreed, and this settlement was by said bank entered in said pass book.
    Afterwards other deposits were made and entered on the pass book, and checks drawn by defendant against the same, which was followed, in December, 1906, by another settlement and striking of a balance, to which the parties agreed, that the settlement showed a balance due defendant of $1,228.37.
    The answer sets out two subsequent settlements entered in the pass book by the bank, by the last of which there was a balance due defendant of $114.46. It is alleged that both parties agreed that this was a correct balance and the same was accepted as such, and the bank paid said balance to defendant.
    The reply of the bank denies each and every allegation in the answer, except the admissions therein contained, and further says that the accounts rendered defendant by it and the balance struck were done under a mistake of fact unknown to both parties at the time, which mistake consisted of credits given defendant by the plaintiff to which he was not entitled, and which mistake of credits was carried through and included in the several statements and balances struck between them, of which mistakes the defendant was duly notified when they were discovered, and defendant was requested to have the same corrected, and a new balance struck, but defendant refused so to do, and the plaintiff asks in the reply that it be let in to prove all such mistakes and for proper relief.
    The trial of the issues resulted in a finding for the defendant and judgment accordingly.
    The plaintiff bank perfected an appeal to the circuit court where on motion of the defendant the appeal was dismissed on the ground that the right to appeal did not exist. Error is prosecuted in this court to reverse the order of the circuit court dismissing the appeal.
    
      Mr. W. W. 'Campbell and Mr. James P. Ragan, for plaintiff in error.
    
      Messrs. Donovan & Dittmer, for defendant in error.
   Price, J.

The amended petition lacks definite statement as to the nature of the “mistake in fact and oversight made in said account” which it alleges, and, on application of the defendant, without doubt, the lower court would have required the plaintiff to be more specific and set out the mistake or mistakes, and the particular fact or thing that was overlooked by the parties in making up their accounts. No such application or order was made, and for the purposes of appeal, it is not necessary that a petition be perfect, if it substantially sets up a cause of action.

It was held by the circuit court that the case sought to be made in the amended petition is not appealable, and for that reason the appeal was dismissed. This view is urged in most part, because this court, in Willson Improvement Co. v. Malone, 78 Ohio St., 232, overrules Black, Receiver, v. Boyd, 50 Ohio St., 46, the petition in the latter case, it is alleged, being exactly like the amended petition before us.

Our examination shows that the petitions are not entirely similar. In Black v. Boyd, supra, the plaintiff predicated his claim for an accounting and equitable relief, on the alleged fact, that the bank, in that case, and Boyd had had mutual dealings through a period of at least ten years, and the Plain City Bank and the defendant Boyd “have kept books of account touching said dealings, which accounts and the items thereof extend to a very large number, and that the aggregate, of said items exceed the sum of $600,000. The said plaintiff and the said defendant have been trying to adjust said items of account, and to come to a settlement of the same, but they have been unable to adjust or settle their account.” The reason for such failure was the large amount the defendant claimed would be due him, and that the plaintiff could not agree to that.

There was no allegation of fraud or even mistake. Nothing but a very large number of items aggregating a large sum of money, and a stubbornness of disposition of the parties in reference to a settlement, appear as the ground for equitable relief. That case presented merely a long current account between the parties, many items of debt and credit during the ten years of business requiring care and patience in placing in order and summing up many figures on each side of the account, and yet it was a suit for the recovery of money only in which a jury trial might be demanded.

Such is not quite the case before us. It has similar averments in the amended petition, but there is one distinguishing feature in the present case. In addition to what was averred in Black v. Boyd, supra, it is alleged that: “the plaintiff and defendant -have been trying to adjust said items of account, but because of a mistake in fact and oversight made in said account, which mistake in fact and oversight in said account was carried from time to time in the account of both plaintiff and defendant, and they have been unable to adjust and settle their said account,” etc.

As we have already intimated, the effort to plead an appealable case is somewhat feeble, but the assertion that a mistake or mistakes permeating the account of each of the parties, and carried forward from time to time during the years alleged, standing as a block to a mutual settlement, gives color and character to the plaintiff’s case. The character of these mistakes should have been set out, but the court did not require it, and we are left to determine whether a jury is the proper tribunal to discover and correct mistakes, preliminary to finding what may be due either of the parties. It would seem unreasonable that a jury of twelve men can intelligently determine what mistakes have occurred in the accounts of the parties, and how they affect the adverse claims of each. This process would involve the restating of the accounts in order to eliminate mistakes, a labor more congenial to the court, or a master.

If we look to the answer filed to the amended petition, we find that the defendant denies most of its allegations and proceeds to plead periodical settlements between himself and the bank; the stating of his account by the bank and striking a balance, all of which the bank entered in defendant’s pass book as a correct statement of the account. There were several of such balancings of the account, and defendant alleges that the bank and he agreed that such statement was correct.

The reply charges that these statements and balances made by the bank were made under mistake, as to the credits which the bank had given' defendant to which he was not entitled and that these erroneous credits were carried through each of the several balances.

While the right of the plaintiff to appeal generally depends on the relief sought in his petition, we think the right may be made clearer by the pleading of his adversary, and in that respect we refer to the answer and reply in this case.

We are of opinion the circuit court should have entertained the appeal, and that it erred in dismissing it.

Judgment reversed.

Davis, C. J., Spear, Shaucic, Johnson and Donahue, JJ., concur.  