
    OSTROW v COHLE et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 4147.
    Decided Jan 9, 1933
    Zielonka & Kuertz, Cincinnati, and Eugene Adler, Cincinnati, for plaintiff in error.
    Wm. R. Collins, Cincinnati, for defendant in error.
   ROSS, PJ.

It may be presumed even if the evidence did not show it to be true that the defendant’s previous conduct was consistent with this defense.

Tender to one who denies the existence of a contract, which would make tender necessary renders tender a futility. We are unable to see how prejudice could result to a party denying any agreement to purchase because tender had not been made and proved. In the second place the pleadings were amended by interlineation to conform to the proof that the plaintiffs acted as brokers • purchasing the stock for the defendant. The plaintiffs therefore held the customer’s stock awaiting his disposition, and it has been frequently held that the possession of the agent or broker is the principal’s or customer’s possession. It was therefore unnecessary to tender that which was already in the legal possession of the customer.

No exception was taken by the defendant to the general charge of the court, and we, therefore, find it unnecessary to pass upon any error that may have been contained therein.

The judgment is affirmed.

HAMILTON and CUSHING, JJ, concur.  