
    Dykeman v. Johnson.
    
      Action on account — Services rendered — Petition in short form— Section 5086, Revised Statutes — Petition construed — Sufficient cause of action averred by implication — General denial — All facts necessary to cause of action in issue — Defendant also pleads contract — Terms preclude recovery — Reply does not enlarge issues — Burden of proof rests with, plaintiff.
    
    1. Where in an action on an account to recover for' services rendered, the petition of plaintiff is in the short form authorized by Section 5086, Revised Statutes,' such petition must be construed to contain and by implication allege, all those facts which it would otherwise be necessary to specifically aver in the statement of a sufficient cause of action, and every fact thus averred by implication is traversed and put in issue by the general denial.
    2. When by way of answer to such a petition the defendant in addition to pleading the general denial, further alleges that the services performed by the plaintiff were rendered and performed by him under .an express contract the terms of which preclude the , recovery of compensation therefor, such averments do not constitute an affirmative defense of new matter requiring a reply, and the filing of a reply thereto does not operate to change or enlarge the issues, or to shift the burden of proof. The legal effect of such an answer taken as a whole, is merely to deny the cause - of action asserted by plaintiff in his petition, and the burden of proof upon the issues thus joined rests with the plaintiff, and the court of common pleas did not err in so instructing the jury in the present case. (Sanns v. Neal, 52 Ohio St., 56, distinguished.)
    (No. 12169
    Decided November 22, 1910.)
    Error to the Circuit Court of Lorain county.
    Arland W. Johnson, the defendant in error, filed his petition in the court of common pleas of Lorain county, Ohio, against the plaintiff in error, H. A. Dykeman, to recover upon an account for services rendered and money expended. Said petition was in the words and figures following, to-wit:
    “The first full name of defendant is unknown to this plaintiff.
    “Plaintiff is an architect located and doing business in Toledo, Ohio.
    “There is due the plaintiff from the defendant the sum of fifteen hundred and forty dollars ($1,540.00) upon an account of which the following is a true copy:
    “Mr. H. A. Dykeman,
    “Elyria, Ohio, Dr.
    “To;
    “Arland W. Johnson, Toledo, Ohio. “April 23rd, 1907.
    “To one set of plans and specifications for a theater building to be erected at Lorain, Ohio, and letting contract to Superior Construction Company for the erection of the same, 3 >4% on $36,000.00......$1260.00
    ' “To letting contract with the H. J. Spieker Co. for the construction of same, the Superior Construction Co. having failed to qualify.... 120.00
    “To expenses in connection with the same, including thirty trips from • Toledo, Ohio, to Lorain, Ohio... 120.00
    “To expenses telegraphing and telephoning ................... . . . 20.00
    “Total $1540.00
    
      “There are no credits thereon, or off-sets thereto'. There is due the plaintiff from the defendant on said account the sum of fifteen hundred and forty dollars ($1,540.00) with interest thereon from the 23rd day of April, 1907, at six per cent. (6%) per annum, which he claims and for which he asks judgment.
    “Wherefore plaintiff asks judgment against defendant for the sum of fifteen hundred and forty dollars ($1,540.00) with interest thereon at the rate of six per cent. (6%) per annum from the 23rd day of April, 1907.”
    To this petition the defendant, H. A. Dykeman, answered as follows:"
    “Not denying plaintiff’s business and residence as alleged in his petition, defendant denies each and every other allegation contained therein.
    “By way of further answer to said plaintiff’s petition, defendant says that in the month of April, 1907, at the solicitation of said plaintiff, said plaintiff and said defendant entered into a verbal agreement looking to the promotion and erection of a theater building at Lorain, Ohio. Said defendant, at that time, was the owner of certain booking rights, which in theatrical circles is known as a-‘franchise’ for the city of Lorain, which were to expire in October, 1907, and which franchise was only valuable to said defendant in case he could procure a lease of a theater in which to commence playing shows in Lorain, prior to said date, to-wit, October 1st, 1907, and for which franchise said defendant- had expended a considerable sum of money. Said plaintiff had full knowledge of these facts and desiring as well a commission, which is a pércentage upon the cost of the building for which his plans and specifications should be furnished and including the superintendence of its erection, which commission is very greatly in excess of the actual cost of the production of such plans and specifications; entered into an agreement with the said defendant as aforesaid, to furnish plans and specifications for a theater building for Lorain, as against defendant’s franchise rights, and that they, together, would endeavor to secure the money by the organization of a company and sale of stock or by such other means as were feasible in order to build such theater.
    “It was further agreed that said building should not cost, including the architect’s commission, to exceed thirty-five thousand dollars ($35,000.00), 'rung up,’ which is to say, 'complete and ready for use.’
    “That in the event they were successful, said plaintiff was to receive a commission of five (5) per cent, upon the full cost of said building. Provided always that such commission should not raise the cost of such building above said sum of $35,000.00.
    “It was expressly agreed and understood that, in the event they were not successful in promoting and building such theater, that said plaintiff should stand the cost of preparing his plans and specifications and that said defendant should stand the loss of such expenditures as he, himself, had made in the effort to promote the venture.
    “That, notwithstanding the best efforts of both parties to the agreement, they were unsuccessful, and each took his chances with full knowledge of the circumstánces.
    “Said defendant, in the loss of the money expended for the aforesaid franchise; for an option upon certain real estate in Lorain, in connection with the aforesaid venture, and in the payment of personal expenses, including two trips to New York, sustained losses fully equal to and greater than those sustained by said plaintiff.
    “Wherefore, plaintiff prays that he may be adjudged to go hence with his costs.”
    To this answer the plaintiff filed the following reply:
    ■ “Now comes the plaintiff and for his reply to the defendant’s answer herein admits that the defendant was the owner of certain booking rights, which in theatrical circles are known as a ‘franchise,’• for the city of Lorain, and which was valuable to said defendant in case he could procure a theater ; that defendant had expended .considerable sums of money in procuring said ‘franchise;’ that plaintiff was to receive a commission of five (5) per cent, upon the full cost of the building in case plaintiff should furnish superintendence of construction, in addition to the designing, furnishing plans and specifications and letting contracts which he was required to furnish, but plaintiff avers that he was to receive only three and a half (3/4) per cent, upon the full cost of the building in case he should furnish the designing, plans, specifications and letting contracts, but did not furnish superintendence.
    . “Plaintiff denies all and singular the allegations in defendant’s answer contained not herein expressly admitted to be true and which are not admissions of the statements in plaintiff’s petition herein.”
    The cause was tried in the court of common pleas and resulted in a verdict and judgment in favor of the defendant H. A. Dykeman. Error was duly prosecuted to the circuit court of Lorain county, where the judgment of the court of common pleas was reversed on the sole ground that said court erred in charging the jury that the burden of proof under the pleadings' was upon the plaintiff instead of upon the defendant. To obtain a reversal of this judgment of the circuit court and an affirmance of the judgment of the court of common pleas, the present proceeding in error is prosecuted.
    
      Mr. Clayton Chapman and Mr. Q. A. Gillmore, for plaintiff in error, cited and commented upon the following authorities:
    
      Sanns v. Neal, 52 Ohio St., 56; List & Sons Co. v. Chase, 80 Ohio St., 42; Manufacturing Co. v. Fisher, 54 W. L. B., 422; Simmons v. Green, 35 Ohio St., 104; 9 Cyc., 735; Serenson v. Townsend, 77 Neb., 499; Fudge v. Marquell, 164 Ind., 447; 1 Ency. Pl. & Pr., 818; Mehurin v. Stone, 37 Ohio St., 49; Brewing Co. v. Schultz et al., 68 Ohio St., 407.
    
      Mr. Lewis W. Morgan; Messrs. Stroup & Fauver and Messrs. King, Tracy, Chapman & Welles, for defendant in. error, cited and commented upon the following authorities:
    
      List & Sons Co. v. Chase, 80 Ohio St., 42; Tiffin Glass Co. v. Stoehr, 54 Ohio St., 157; Sanns 
      v. Neal, 52 Ohio St., 56; Beverley v. Gas Light & Coke Co., 6 A. & E., 829, 33 E. C. L., 222; Mayor v. Pyne, 3 Bing., 88; 2 Smith’s Leading Cases, 21; Dermott v. Jones, 2 Wall., 1; Williams v. Sherman, 7 Wend., 109; Baker v. Corey, 19 Pick., 496; McKee v. Vincent, 33 Minn., 508; McGraw v. Sturgeon, 29 Mich., 426; 2 Smith’s Leading Cases, 49; Clements v. Moore, 6 Wall., 299; Pomeroy on Code Remedies (4 ed.), 817; 5 Am. & Eng. Ency. Law (2 ed.), 25; Printing Co. v. Willis, 57 Minn., 93; Michalitschke Bros. v. Wells, Fargo & Co., 118 Cal., 683; Railroad Co. v. Pace, 69 Ark., 256; Insurance Co. v. Gulick, 15 C. D., 395; Pomeroy on Code Remedies (4 ed.), Section 436.
   Crew, J.

The only assignment of error which we deem it important to notice in this opinion is that relating to the charge of the court touching the question of where and with whom rested the burden of proof in this case. Upon the trial of this cause in the court of common pleas, the evidence and arguments being closed, the court among other things instructed the jury that under the pleadings the burden of proof upon the issues joined was upon the plaintiff, and refused to charge as requested by counsel for the plaintiff, “that the burden of proof was upon the defendant to establish the defense set up in his answer.” The circuit court found and held that the instruction given, which imposed upon plaintiff the burden of proof, was erroneous, and for that reason and upon that ground alone reversed the judgment of the trial court, in this we think the circuit court erred. The petition of plaintiff in this case was upon an account for services rendered and was in the short form authorized by Section 5086, Revised Statutes, which section so far as its provisions are here material reads as follows: “In an action * * * upon an account * * * it shall be sufficient for a party to set forth a copy of the account * * * with all credits * * * thereon and to state that there is due to him on such account * * * from the adverse party a specified sum which he claims with interest.” By the enactment of this statute the legislature obviously intended that the statements therein prescribed, when adopted by the pleader, should be held the equivalent of, and should imply and import all that it would otherwise be necessary to specifically allege in the statement of a sufficient cause of action. Hence, every fact thus averred by implication must be held to be traversed and put in issue by the general denial. In the present case the defendant, A. W. Johnson, by way of answer, in addition to pleading the general denial, further alleged that the services counted upon by plaintiff in his petition were services performed' by him under and pursuant to an express agreement made and entered into between plaintiff and defendant the terms of which were fully set out in said answer. After the general denial, the pleading of this contract was wholly unnecessary, for it tendered no new or separate issue and in legal effect amounted only to a denial of the averments of plaintiff’s petition; it was not a plea of new matter by way of confession and avoidance, hence no reply thereto was necessary, and the reply filed - was without legal effect to either change or enlarge the issues, or to shift the burden of proof. The attitude of the defendant under the pleadings in this case was purely defensive, and his answer in legal effect merely a denial of the cause of action asserted by plaintiff in his petition. The burden of proof was therefore on the plaintiff, and the court of common pleas properly so instructed the jury. Simmons v. Green, 35 Ohio St., 104; Mehurin v. Stone, 37 Ohio St., 49; The Koppitz-Melchers Brewing Co. v. Schultz, 68 Ohio St., 407; The List & Son Co. v. Chase, 80 Ohio St., 42; Ginn v. Dolan, 81 Ohio St., 121; 9 Cyc., 735. It would seem from the opinion of the circuit court in this case, — which opinion we now have before us, — that notwithstanding that court entertained the view that the rule as herein above announced is the correct rule, it nevertheless felt constrained to enter the judgment it did, because of the interpretation placed by it upon a former decision of this supreme court. The circuit court in its opinion says: “If the matter were one of first impression with us we should approve this rule (that the burden of proof was on the plaintiff), but we feel bound by the rule of Sanns et al. v. Neal, 52 Ohio St., 56, which we cannot distinguish in its application to the facts of that case from its equal application to the facts of this case. * * * Though logic would seem to require the plaintiff to prove as in other cases in its entirety, the contract on which his account is based, we bow reluctantly to authority and reverse the judgment for error in charging upon the burden of proof and in refusing to charge as requested.” In thus yielding deference to the supposed controlling effect of the decision in Sanns v. Neal, supra, we think the learned circuit court misconceived and incorrectly interpreted the scope of that decision. While certain of the language found in the majority opinion in that case is seemingly perhaps, at first glance, opposed to the conclusion reached by us in this case, yet, when the facts of that case are fully considered we very much doubt if the court thereby intended to decide anything which we are called upon to overrule or reverse in The present case. In that case, which was also an action on account for services rendered, the defendants in their answer after pleading the general denial, by way of further and particular defense alleged that all of the services performed by plaintiff were performed by him under a special contract and that full payment therefor according to the terms of said contract had been made to the, plaintiff, and while the rendition of the services sued for was put in issue by the general denial, performance of such services by the plaintiff and that he was entitled to compensation therefor was not in dispute, but on the trial was admitted by the evidence of defendants themselves. The performance of the services being admitted this averment of special contract and plea of payment under and pursuant thereto was more than a mere denial, it was in legal effect the assertion of an affirmative defense, the burden of maintaining'which was on the defendants. These facts we think so far differentiate and distinguish that case from the case at bar, as to leave it without controlling effect in the determination of the present case.

The judgment of the circuit court reversed and the judgment of the court of common pleas affirmed.

Summers, C. J., Spear, Davis,' Shauck and Price, JJ., concur.  